Terry Burl Smith, Jr. v. Department of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TERRY BURL SMITH, JR.,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2025-1591
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0714-23-0143-I-1.
______________________
Decided: January 21, 2026
______________________
T ERRY BURL SMITH , J R., Chicago, IL, pro se.
L AUREL D ON H AVENS , III, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
ALBERT S. I AROSSI, P ATRICIA M. M CC ARTHY , BRETT
SHUMATE.
______________________
Before M OORE, Chief Judge, D YK and T ARANTO, Circuit
Judges.
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SMITH v. DVA 2
P ER CURIAM .
Terry Burl Smith, Jr. petitions for review of a final or-
der of the Merit Systems Protection Board (Board) affirm-
ing an initial decision sustaining his removal from
employment at the Department of Veterans Affairs (VA).
We affirm.
BACKGROUND
Mr. Smith was employed as a police officer for the VA
in Chicago, Illinois for over seven years. Appx. 64–65.1 In
response to a report of seventeen rounds being fired from
Mr. Smith’s residence where he was hosting a party, the
Chicago Police arrived at his home and found Mr. Smith
standing near spent shell casings. Appx. 21; Appx. 67–68.
Mr. Smith admitted he was in possession of a firearm and
fired the gun. Appx. 21. The Chicago Police arrested Mr.
Smith and charged him with Reckless Discharge of a Fire-
arm, a Class 4 Felony. Appx. 21–22; Appx. 67. The VA
suspended Mr. Smith’s arrest authority pending the VA’s
investigation and case outcome in state court. Appx. 22.
In his state court case, Mr. Smith pleaded guilty to Reck-
less Conduct and was sentenced to pay court fees and fines,
as well as serve a two-year probation period. Appx. 24.
Based on its investigation, the VA permanently suspended
Mr. Smith’s arrest authority. Appx. 24; Appx. 71. Follow-
ing his suspension, the VA issued Mr. Smith a notice of pro-
posed removal asserting two charges: (1) conduct
unbecoming a federal employee; and (2) failure to meet po-
sition requirements based on Mr. Smith’s lack of police ar-
rest authority. Appx. 58–60. The notice included a
Douglas Factor worksheet analyzing all twelve factors un-
der the framework set forth in Douglas v. Veterans Admin-
istration, 5 M.S.P.R. 280 (1981). Appx. 61–63. The VA
1 “Appx.” refers to the appendix attached to Re-
spondent’s brief.
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SMITH v. DVA 3
then formally notified Mr. Smith of its decision to remove
him from employment with the VA. Appx. 55–57.
Mr. Smith appealed his removal to the Board,
Appx. 26, and in its initial decision, the administrative
judge (AJ) affirmed the VA’s removal, Appx. 43. The AJ
found “by undisputed evidence” the VA had proven the
charges. Appx. 32. The AJ also found Mr. Smith failed to
prove his affirmative defenses of race discrimination and
due process violation. Appx. 34–41. Mr. Smith filed a pe-
tition for review with the Board. Appx. 9–18. The Board
denied Mr. Smith’s petition and affirmed the AJ’s initial
decision.2 Appx. 2. Mr. Smith petitions for review.3 We
have jurisdiction under 5 U.S.C. § 7703(b)(1)(A) and
28 U.S.C. § 1295(a)(9).
D ISCUSSION
The scope of our review in an appeal from a decision of
the Board is limited. Generally, we must affirm the deci-
sion unless we find it to be “(1) arbitrary, capricious, an
abuse of discretion, or otherwise 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). We review the
Board’s legal determinations de novo and its factual find-
ings for substantial evidence. Archuleta v. Hopper, 786
F.3d 1340, 1346 (Fed. Cir. 2015). When reviewing a pen-
alty, the Board is required to determine whether the
agency has responsibly balanced the Douglas factors.
Holmes v. U.S. Postal Serv., 987 F.3d 1042, 1047 (Fed. Cir.
2021). “The determination of which Douglas factors apply
2 Although affirming otherwise, the Board modified
the initial decision to apply Illinois law regarding collateral
estoppel, an issue not raised on appeal. Appx. 2.
3 Mr. Smith does not challenge the AJ’s race discrim-
ination findings on appeal.
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SMITH v. DVA 4
in a particular case and the weight to be given the relevant
factors lies primarily within the agency’s broad discretion
to determine the appropriate penalty for a particular case.”
Zingg v. Dep’t of Treasury, IRS, 388 F.3d 839, 844 (Fed. Cir.
2004). We defer to the “agency’s choice of penalty unless
the penalty exceeds the range of permissible punishment
specified by statute or regulation, or unless the penalty is
so harsh and unconscionably disproportionate to the of-
fen[s]e that it amounts to an abuse of discretion.” Id. at
843 (citation omitted).
Mr. Smith argues the Board failed to properly weigh
“key Douglas mitigating factors, including Petitioner’s mil-
itary and service record.” Petitioner’s Br. 2. Mr. Smith ap-
pears to ask us to reweigh the evidence under the Douglas
factors to find the penalty imposed was unreasonable. See,
e.g., id. (arguing his achievements were not “properly con-
sidered”); id. at 3 (alleging the Board “failed to fairly apply
the Douglas factors”); Reply Br. 4 (arguing the Board failed
to “meaningfully weigh” certain mitigating factors).
Mr. Smith, however, fails to identify any information that
should have been, but was not, considered by the Board,
AJ, or deciding official.4 As the AJ noted, the VA
4 For the first time, Mr. Smith alleges in his Reply
that certain e-mail communications show the deciding offi-
cial considered placing Mr. Smith in another position be-
fore deciding to remove him. Reply Br. 4–5. Mr. Smith did
not raise this issue in his opening brief, so this argument
is forfeited. McIntosh v. Dep’t of Defense, 53 F.4th 630, 641
(Fed. Cir. 2022). In any event, the AJ considered the record
regarding the deciding official’s consideration of alternate
employment and credited the deciding official’s testimony
that he considered the issues of penalty and alternate em-
ployment separately. Appx. 40. The e-mail communica-
tions give no reason to disturb the AJ’s determination that
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SMITH v. DVA 5
“thoroughly and appropriately considered the relevant
[Douglas] factors” in the Douglas Factor worksheet.
Appx. 42–43. The AJ found the deciding official “to have
given serious, independent consideration to the Douglas
factors,” and credited testimony “that he gave significant
weight to the evidence that the appellant is a good human,
a good person, and a loyal veteran.” Appx. 42. The AJ
noted that in the removal decision, the deciding official
stated he considered Mr. Smith’s “years of service, past
work record, and other mitigating or extenuating circum-
stances” and agreed with the deciding official that the mit-
igating factors did not outweigh the seriousness of Mr.
Smith’s misconduct and other aggravating factors.
Appx. 42–43. Based on these findings, the AJ determined
(and the Board affirmed) that the VA’s penalty of removal
was reasonable and supported by substantial evidence.
Appx. 41–43; see Appx. 2–3. In view of the record, we see
no reversible error in the Board’s determination that the
VA did not abuse its discretion in concluding removal was
the appropriate penalty. Zingg, 388 F.3d at 843.
Mr. Smith also contends he was denied due process
when the Board “rel[ied] on undisclosed aggravating evi-
dence regarding reassignment.” Petitioner’s Br. 2. Specif-
ically, he alleges the “deciding official unfairly used
[Mr.] Smith’s failure to seek reassignment as an aggravat-
ing factor, without prior notice or an opportunity to re-
spond.” Id. As an initial matter, the AJ found the deciding
official credibly testified he considered the issues of penalty
and alternate employment independently of each other.
Appx. 40. Moreover, the AJ found the deciding official no-
tified Mr. Smith he was considering placing him in a differ-
ent position within the agency if Mr. Smith would agree to
it, which would have been a mitigation of Mr. Smith’s
the penalty removal was supported by substantial evi-
dence. Appx. 41–43.
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SMITH v. DVA 6
proposed removal. Appx. 39–40; see Appx. 58–63. The AJ
also found the deciding official offered Mr. Smith an oppor-
tunity to respond. Appx. 39–40. All of these findings are
supported by substantial evidence, and Mr. Smith fails to
show otherwise. Mr. Smith therefore fails to show any re-
versible error in the Board’s decision.
CONCLUSION
We have considered Mr. Smith’s remaining arguments
and find them unpersuasive. Accordingly, we affirm.
AFFIRMED
COSTS
No costs.
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