¶1    This case is before the Board on remand from the U.S. Court of Appeals for the Federal Circuit, which affirmed in part and vacated in part the Board’s final decision affirming the removal action. Gregory v.U.S. Postal Service, 212 F.3d 1296 (Fed. Cir. 2000), cert. granted, 121 S. Ct. 1076 (2001). The court remanded the case for further consideration of the penalty. Upon consideration of the issues, we REMAND the appeal to the agency, as discussed below.

BACKGROUND

¶3    The appellant then sought review by the U.S. Court of Appeals for the Federal Circuit, which affirmed the Board’s decision as to the charge and the appellant’s affirmative defenses, but vacated the decision as to the penalty and remanded the appeal to the Board. Gregory, 212 F.3d 1296.

ANALYSIS

¶5    The court instructed the Board to determine whether the case should be returned to the agency to select a penalty or whether the Board should exercise its own mitigation authority pursuant to the framework established in LaChance v. Devall, 178 F.3d 1246, 1259-60 (Fed. Cir. 1999). In that case, the court held that, when the Board does not sustain all of the charges, it may mitigate to the maximum reasonable penalty so long as the agency has not indicated that it desires a lesser penalty be imposed. Here, the issue is not whether the penalty is no longer appropriate because not all of the charges had been sustained but whether the penalty was no longer appropriate because the agency and the administrative judge incorrectly considered prior discipline as an aggravating factor. The deciding official, Senior Labor Relations Specialist Tommy Caruthers, testified that, in the absence of the prior discipline, the charge would not be sufficient to warrant removal. Hearing Transcript (HT) at 271-72. He did not testify, however, as to what penalty he would have imposed. Further, while the record shows that the appellant had grieved her suspensions, the current status of those grievances is unclear.

¶6    Under the circumstances, we have determined that the parties’ interests can best be served by remanding the appeal to the agency to re-evaluate the penalty rather than by the Board imposing a penalty on the present record. In this regard, we note the long-established rule that in its consideration of a penalty, the Board will "accord proper deference to the agency’s primary discretion in managing its work force." Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). The agency’s exercise of that discretion, of course, remains subject to the Board’s review in this case, as in all other similar appeals.

ORDER