Case: 19-2417   Document: 39     Page: 1    Filed: 10/07/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                  WINSOME MESSAM,
                      Petitioner

                            v.

         NATIONAL ARCHIVES & RECORDS
               ADMINISTRATION,
                    Respondent
              ______________________

                       2019-2417
                 ______________________

    Petition for review of the Merit Systems Protection
 Board in No. DC-0752-19-0084-I-1.
                 ______________________

                 Decided: October 7, 2020
                 ______________________

    SARA MCDONOUGH, Alan Lescht and Associates, PC,
 Washington, DC, for petitioner.

     ALISON VICKS, Commercial Litigation Branch, Civil Di-
 vision, United States Department of Justice, Washington,
 DC, for respondent. Also represented by JEFFREY B.
 CLARK, TARA K. HOGAN, ROBERT EDWARD KIRSCHMAN, JR.
                  ______________________

     Before DYK, MOORE, and TARANTO, Circuit Judges.
Case: 19-2417    Document: 39     Page: 2   Filed: 10/07/2020




 2                                          MESSAM   v. NARA



 PER CURIAM.
     Winsome Messam seeks review of a Merit Systems Pro-
 tection Board (“Board”) decision sustaining her removal
 from the National Archives and Records Administration
 (“NARA”). We affirm.
                       BACKGROUND
     Ms. Messam was a federal employee for approximately
 twelve years. From 2009 to 2018, she worked for NARA as
 a Financial Management Analyst in the Office of the Chief
 Financial Officer (“CFO”). NARA is the nation’s record
 keeper and ensures that federal government records are
 maintained and preserved as required by law. As part of
 its mission, NARA operates the Federal Record Center Pro-
 gram (“Program”), which provides storage and related ser-
 vices to temporary and pre-archival federal records. The
 Program operates as a revolving fund and enters into in-
 teragency agreements (“IAA”) with certain federal agen-
 cies, whose records are stored and serviced at record
 centers throughout the country. Through their IAAs, agen-
 cies pay the Program for storage and other services. These
 funds are used to finance the Program, including the pay-
 ment of salaries and contractors.
      The Program does not receive any direct appropria-
 tions from Congress; instead, it receives its funding
 through the IAAs. The Program, however, is still subject
 to laws that govern the availability of appropriated funds,
 such as the Anti-Deficiency Act, 31 U.S.C. § 1341, which
 require the Program not to incur obligations, costs, or ex-
 penditures that exceed its total budget authority. Viola-
 tions of the Anti-Deficiency Act can result in very serious
 consequences for an agency and any individual involved,
 including potential criminal liability.
   Ms. Messam was responsible for tracking IAAs for
 NARA. When she received an IAA or a modification of a
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 MESSAM   v. NARA                                            3



 preexisting IAA, she was responsible for updating her per-
 sonal financial tracking report as well as NARA’s report.
 Ms. Messam would then send the updated NARA report to
 the Bureau of Fiscal Services (“BFS”), NARA’s financial-
 management shared-services provider. BFS would then
 enter the information into a financial system. To ensure
 the accuracy of the information entered, Ms. Messam was
 also responsible for performing monthly reconciliations,
 during which she would compare information that was en-
 tered into the financial system to what she entered into her
 personal tracking sheet. If Ms. Messam discovered any dif-
 ferences, she was responsible for flagging and reconciling
 them. Cherimonda Arrington was Ms. Messam’s first-line
 supervisor and her second-level supervisor was CFO Col-
 leen Murphy.
      In 2018, the Internal Revenue Service (“IRS”) entered
 into two IAAs with NARA. The first IAA provided a total
 of $34 million to the Program to manage the IRS’s records
 and thus created a total budget authority of $34 million
 (i.e., the IRS would provide a total of $34 million in funding
 to NARA for NARA to manage the IRS’s records). The sec-
 ond provided an additional budgetary authority of $2 mil-
 lion. On January 29, 2018, NARA received a request to
 obligate $8.25 million of the IRS’s $34 million budget au-
 thority. 1 Ms. Messam processed the request in March



     1    As the Supreme Court noted in Maine Community
 Health Options v. United States, 

(2020),
 “[a]n ‘obligation’ is a ‘definite commitment that creates a
 legal liability of the government for the payment of goods
 and services ordered or received, or a legal duty . . . that
 could mature into a legal liability by virtue of actions on
 the part of the other party beyond the control of the United
 States.’”

(quoting GAO, GAO-05-734SP, A Glos-
 sary of Terms Used in the Federal Budget Process 70
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 4                                            MESSAM   v. NARA



 2018, but rather than obligate $8.25 million of the total
 budgetary authority, she increased the total budget au-
 thority by $8.25 million to $42.5 million.
     On March 15, Arthur Hawkins, NARA’s account man-
 ager for the IRS, advised Ms. Messam that a downward ad-
 justment of $8.25 million was necessary, explaining that
 the request was to obligate funds, not to increase the total
 budget authority. He also requested that she ensure that
 the financial system be updated to reflect the correct
 budget authority of $34 million. Ms. Messam made the
 change in the report and sent the update to BFS that same
 day; however, as of March 28, a quarterly reconciliation
 identified that the $8.25 million overstatement of budget
 authority still existed in the financial system and that a
 downward adjustment was still required. The same day,
 Ms. Messam’s immediate supervisor, Cherimonda Arring-
 ton, informed her that the change had not been made in the
 financial system. Apparently, BFS had failed to process
 the correction that Ms. Messam had sent earlier that
 month, and Ms. Messam did not perform a reconciliation
 any time after she submitted the change to catch the error.
     Mr. Hawkins sent Ms. Messam another modification
 on May 24, 2018. He requested that Ms. Messam obligate
 $18,873,583.40 toward the IRS’s first IAA and increase the
 overall budget authority from $34 million to $36 million.
 Rather than obligate the $18,873,583.40 in funds, Ms. Mes-
 sam again increased the IAA’s total budget authority by


 (2005)); see also 2 GAO, Principles of Federal Appropria-
 tions Law 7-3 to -4 (3d ed. 2006) (“[I]n very general and
 simplified terms, an ‘obligation’ is some action that creates
 a legal liability or definite commitment on the part of the
 government, or creates a legal duty that could mature into
 a legal liability by virtue of an action that is beyond the
 control of the government.”).
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 MESSAM   v. NARA                                           5



 this amount. Ms. Messam thus increased the budget au-
 thority from $34 million to over $52 million, resulting in an
 overstatement of budget authority of approximately $16
 million. At the end of June, BFS alerted Ms. Arrington
 about an abnormal fund balance. An analysis of the budget
 authority revealed Ms. Messam’s overstatement of approx-
 imately $16 million. Ms. Arrington discussed the error
 with Ms. Messam, and Ms. Messam explained that she did
 not question the $52 million figure because, without veri-
 fying her calculations, she only paid attention to the modi-
 fication and not the new total that the modification
 outlined.
     On August 28, 2018, Ms. Arrington proposed removing
 Ms. Messam from federal service for negligence and for
 failure to follow instructions. The negligence charge in-
 cluded three specifications: Specifications 1 and 3 con-
 cerned Ms. Messam twice exceeding the IRS’s IAA budget
 authority. Specification 2 pertained to Ms. Messam’s use
 of an incorrect methodology to reach funding levels.
 Ms. Messam submitted her response to Ms. Murphy,
 NARA’s CFO and the deciding official, on September 19,
 2018, after Ms. Murphy granted Ms. Messam a one-week
 extension. After review of the proposed removal and
 Ms. Messam’s response, Ms. Murphy sustained the three
 specifications under the negligence charge but did not sus-
 tain the failure to follow instructions charge. As a result,
 NARA removed Ms. Messam from her position effective
 September 28, 2018. On October 25, Ms. Messam filed an
 appeal with the Board.
     The Administrative Judge (“AJ”) issued a decision on
 June 10, 2019, affirming the NARA’s removal action.
 Ms. Messam did not petition the Board for review, and the
 AJ’s decision became the final decision of the Board.
 Ms. Messam now seeks review by this court. We have ju-
 risdiction under 28 U.S.C. § 1295(a)(9).
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 6                                              MESSAM   v. NARA



                          DISCUSSION
      We must affirm the Board’s decision unless it is:
 “(1) arbitrary, capricious, an abuse of discretion, or other-
 wise not in accordance with law; (2) obtained without pro-
 cedures required by law, rule, or regulation having been
 followed; or (3) unsupported by substantial evidence.”
 5 U.S.C. § 7703(c); Do v. Dep’t of Hous. & Urban Dev., 

, 1093 (Fed. Cir. 2019). Substantial evidence is
 “evidence that a reasonable mind may take as sufficient to
 establish a conclusion.” Grover v. Office of Pers. Mgmt., 

, 1383 (Fed. Cir. 2016).
     On appeal, Ms. Messam argues that the Board’s sus-
 taining the charge of negligence was not in accordance with
 law or supported by substantial evidence. We agree with
 the government that substantial evidence supports the
 Board’s conclusion that NARA proved the charge of negli-
 gence and that this finding was in accordance with law.
     Ms. Messam first argues that the Board applied an in-
 correct standard for determining negligence. As we have
 explained, “[a]n individual is negligent in the performance
 of his duties if he fails to exercise the degree of care that ‘a
 person of ordinary prudence’ with the same experience
 would exercise in the same situation.” Robinson v. Dep’t of
 Veterans Affs., 

, 1011 (Fed. Cir. 2019). The
 Board applied the correct standard, and we see no error
 with the Board’s legal analysis.
     Ms. Messam next argues that the Board’s decision sus-
 taining NARA’s three negligence specifications was not
 supported by substantial evidence. The Board found that
 Ms. Messam held her position with NARA “for approxi-
 mately nine years and was expected to perform her duties
 properly and independently” and that Ms. Messam “was
 the only employee responsible for processing IAAs and had
 no responsibilities unrelated to processing IAAs.” J.A. 15.
 The Board noted that Ms. Messam admitted that on two
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 MESSAM   v. NARA                                             7



 occasions she submitted reports that resulted in an over-
 statement of budgetary authority as NARA explained in its
 removal. The Board also found that Ms. Messam “acknowl-
 edged using flawed methodology when determining the
 amounts to include on her [report].”

 plained that “[i]n both instances the overstatements were
 not identified by [Ms. Messam] or corrected until someone
 else discovered her error.”

findings, the
 Board found that Ms. Messam “failed to exercise the degree
 of care of a financial analyst and was therefore negligent.”

the Board’s decision
 finding Ms. Messam was negligent.
     Ms. Messam additionally argues that NARA’s penalty
 of removal was not in accordance with the law because
 NARA failed to consider relevant factors and inappropri-
 ately applied other factors outlined in Douglas v. Veterans
 Administration, 

, 305–07 (1981). As we have
 long held, “[t]he choice of penalty is generally left to agency
 discretion,” Villela v. Dep’t of the Air Force, 

,
 1576 (Fed. Cir. 1984), and “[o]ur review of penalty . . . is
 highly deferential,” Webster v. Dep’t of the Army, 

, 685 (Fed. Cir. 1990). As a result, we “will not disturb
 a penalty unless it exceeds the range of permissible pun-
 ishment or is ‘so harsh and unconscionably disproportion-
 ate to the offense that it amounts to an abuse of
 discretion.’” Gonzales v. Def. Logistics Agency, 

, 889 (Fed. Cir. 1985) (quoting 

).
     The Board reviewed the record evidence and found that
 there was “no basis to disturb the agency’s penalty selec-
 tion.” J.A. 30. We find no error in the Board’s conclusion.
 We cannot say, given Ms. Messam’s admitted conduct, that
 the penalty imposed “exceed[ed] the range of permissible
 punishment or is ‘so harsh and unconscionably dispropor-
 tionate to the offense that it amounts to an abuse of
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 8                                            MESSAM   v. NARA



 discretion.’” 

(quoting 

).
      Finally, Ms. Messam argues that NARA violated her
 due process rights. Ms. Messam asserts that the deciding
 official denied her due process by failing to consider two
 letters from her colleagues that Ms. Messam claims were
 relevant to the Douglas factor analysis. These letters were
 submitted after the deadline for submissions had passed.
 The refusal by the agency to consider her untimely letters
 was not a due process violation.
      Ms. Messam also argues that the agency erred in rely-
 ing on the revocation of her telework privileges as support
 for imposing the sanction of removal because she had not
 received prior notice that this action was relevant.
 Ms. Messam, however, had first raised the revocation of
 her telework privilege in her written reply to the proposed
 removal notice. Considering the revocation of these privi-
 leges thus was not a due process violation.
    We have considered Ms. Messam’s remaining argu-
 ments but find them unpersuasive.
                        AFFIRMED
                            COSTS
     No Costs.