Anthony J. Pellicano v. United States

Pellicano appeals the district court’s order granting summary judgment for the Government and upholding his discharge from employment as a sheet metal mechanic at McClellan Air Force Base in Sacramento, California. Pellicano, a preference-eligible, permanent federal employee with more than twenty-one years of career service, was discharged for falsifying his time records. Because we believe that imposition of the discharge penalty under these circumstances was arbitrary, capricious and an abuse of agency discretion, see Toohey v. Nitze, 429 F.2d 1332, 1334 (9th Cir. 1970), we reverse.

The pertinent facts are undisputed. Pellicano left his duty station without clocking out on four separate occasions for a total of fewer than eight hours. He used this time to visit his son at a nearby youth facility and worked extra hours on other days to make up the time that he had missed. This was Pellieano’s first offense in more than twenty years of service. Nevertheless, he stands to lose his right to receive retirement pay if his discharge is upheld.

Although Air Force regulations provide that ordinarily “a progression of disciplinary measures is applied in an effort to rehabilitate an…