Case: 19-2434 Document: 45 Page: 1 Filed: 02/03/2021

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

LEROY R. GOODSON, Petitioner

v.

DEPARTMENT OF VETERANS AFFAIRS, Respondent ______________________

2019-2434 ______________________

Petition for review of the Merit Systems Protection Board in No. PH-0714-19-0171-I-1. ______________________

Decided: February 3, 2021 ______________________

THOMAS G. WOLPERT, Wolpert Schreiber McDonnell P.C., Royersford, PA, for petitioner.

GEOFFREY MARTIN LONG, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, for respondent. Also represented by JEFFREY B. CLARK, ELIZABETH MARIE HOSFORD, ROBERT EDWARD KIRSCHMAN, JR. ______________________

Before MOORE, REYNA, and STOLL, Circuit Judges. Case: 19-2434 Document: 45 Page: 2 Filed: 02/03/2021

2 GOODSON v. DVA

MOORE, Circuit Judge. Leroy R. Goodson appeals a final decision from the Merit Systems Protection Board affirming the Department of Veterans Affairs’ removal of Mr. Goodson for miscon- duct. Goodson v. Dep’t of Veterans Affairs, No. PH-0714- 19-0171-I-1, 2019 WL 3550392 (M.S.P.B. July 29, 2019). For the following reasons, we vacate and remand. BACKGROUND Beginning in 2012, Mr. Goodson worked in food service at the Veterans Medical Center in Coatesville, Pennsylva- nia. In a February 15, 2019 letter, the Chief of Nutrition and Food Service at the Medical Center, Laura Sarmento, proposed removing Mr. Goodson from employment for in- appropriate conduct in a verbal confrontation with a pa- tient. See 38 U.S.C. § 714. Ms. Sarmento reasoned that removal was the proper penalty (1) because of Mr. Good- son’s prior suspension for “making lewd comments” and en- gaging in “sexually suggestive actions, along with disrespectful behavior towards a supervisor,” (2) because “[e]mployees are expected to treat Veterans with kindness and respect at all times,” and (3) because “it is the respon- sibility of all employees to promote a productive work envi- ronment free of inappropriate conduct and vulgarities.” J.A. 120–21. On February 27, 2019, the Director of the Medical Center, Carla Sivek, found substantial evidence supported the charge of inappropriate conduct and re- moved Mr. Goodson. J.A. 113. Mr. Goodson appealed his removal to the Board. He argued that the Board should consider whether the penalty is out of proportion with the alleged misconduct, particu- larly when there are mitigating factors. In an initial deci- sion, the Chief Administrative Judge rejected Mr. Goodson’s argument, holding that § 714(d)(2)(B) nei- ther requires nor allows consideration of the factors used to consider the reasonableness of a penalty as articulated in Douglas v. Veterans Administration, 5 MSPB 313 (1981). Case: 19-2434 Document: 45 Page: 3 Filed: 02/03/2021

GOODSON v. DVA 3

See J.A. 3; see also J.A. 4. The Chief AJ also sustained the charge of inappropriate conduct, and therefore, affirmed Mr. Goodson’s removal. The initial decision became final on September 2, 2019. Mr. Goodson appeals. We have ju- risdiction under 28 U.S.C. § 1295(a)(9). DISCUSSION We “hold unlawful and set aside” a Board decision that is: “(1) arbitrary, capricious, an abuse of discretion, or oth- erwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence[.]” 5 U.S.C. § 7703(c). Mr. Goodson argues the Board erred in holding 38 U.S.C. § 714(d)(2) precludes considering mitigation of his removal penalty. Subsections 714(d)(2)(A) and 714(d)(2)(B) state: (A) Notwithstanding section 7701(c)(1)(B) of title 5, the administrative judge shall uphold the decision of the Secretary to remove, demote, or suspend an employee under subsection (a) if the decision is supported by substantial evidence. (B) Notwithstanding title 5 or any other provision of law, if the decision of the Secretary is supported by substantial evidence, the administrative judge shall not mitigate the penalty prescribed by the Secretary. Mr. Goodson argues we must vacate and remand under Sayers v. Department of Veterans Affairs, 954 F.3d 1370 (Fed. Cir. 2020). 1 In Sayers, we held that “§ 714 requires

1 Mr. Goodson also argues that the Board’s failure to consider the penalty’s reasonableness violated his right to due process. Because we vacate and remand, we need not reach that issue. Case: 19-2434 Document: 45 Page: 4 Filed: 02/03/2021

4 GOODSON v. DVA

the Board to review for substantial evidence the entirety of the VA’s removal decision—including the penalty—rather than merely confirming that the record contains substan- tial evidence that the alleged conduct leading to the ad- verse action actually occurred.” Id. at 1379. The government argues Sayers was wrongly decided. We, how- ever, are bound by the Sayers decision unless it is overruled en banc or by the Supreme Court. The Chief AJ’s decision, which issued before our decision in Sayers, explicitly re- fused to consider the penalty determination for Mr. Good- son. Accordingly, we must vacate and remand for the Board to consider whether the removal penalty is sup- ported by substantial evidence. CONCLUSION Because the Board failed to consider whether Mr. Goodson’s removal penalty was supported by substantial evidence, we vacate and remand. VACATED AND REMANDED COSTS No costs.