Pacious v. National Aeronautics & Space Administration , 469 F. App'x 874 ( 2012 )


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  •        NOTE: This disposition is nonprecedential.
    United States Court of Appeals
    for the Federal Circuit
    __________________________
    JOHN PACIOUS,
    Petitioner,
    v.
    NATIONAL AERONAUTICS AND SPACE
    ADMINISTRATION,
    Respondent.
    __________________________
    2011-3215
    __________________________
    Petition for review of the Merit Systems Protection
    Board in case nos. DC0752100745-I-1.
    __________________________
    Decided: February 9, 2012
    __________________________
    JOHN PACIOUS, of Alexandria, Virginia, pro se.
    J. HUNTER BENNETT, Trial Attorney, Commercial Liti-
    gation Branch, Civil Division, United States Department
    of Justice, of Washington, DC, for respondent. With him
    on the brief were TONY WEST, Assistant Attorney General,
    JEANNE E. DAVIDSON, Director, and DEBORAH A. BYNUM,
    Assistant Director.
    PACIOUS   v. NASA                                         2
    __________________________
    Before PROST, MAYER, and O’MALLEY, Circuit Judges.
    PER CURIAM.
    John Pacious petitions for review of the final decision
    of the Merit Systems Protection Board (“Board”) denying
    his appeal of the National Aeronautics and Space Admini-
    stration’s (“NASA”) removal action. Pacious v. Nat’l
    Aeronautics & Space Admin., DC0752100745-I-1
    (M.S.P.B. Nov. 24, 2010), petition for review denied,
    (M.S.P.B. June 27, 2011). For the reasons set for below,
    we affirm.
    I. BACKGROUND
    Mr. Pacious was employed as a GS-13 auditor with
    NASA’s Office of Inspector General. In a notice dated
    May 18, 2010, NASA proposed his removal. The incidents
    leading up to the notice of proposed removal began with
    conversations Mr. Pacious allegedly had with co-workers
    Major Cindy Stein, an officer in the U.S. Air Force, and
    Tom Howard, the deputy inspector general. These con-
    versations were reported to NASA management and, on
    March 24, 2010, Mr. Pacious was temporarily barred from
    the headquarters building where he worked. Mr. Pacious,
    however, was working from home on March 24, 2010, and
    was not notified that he had been barred from the build-
    ing. When he came to the building after work hours on
    March 25, 2010, security officers told Mr. Pacious that he
    could not enter the building. Mr. Pacious became upset,
    leading to additional incidents which are described in the
    notice of proposed removal.
    Specifically, the notice of proposed removal included
    three specifications against Mr. Pacious related to threat-
    3                                             PACIOUS   v. NASA
    ening bodily harm and two specifications related to creat-
    ing a workplace disturbance. Regarding the threat of
    bodily harm, the first specification involved Mr. Pacious’s
    alleged statement in the lobby of the headquarters build-
    ing on March 25, 2010, that he would kill Kevin Winters,
    the assistant inspector general. The second specification
    involved certain conversations Mr. Pacious allegedly had
    with Major Stein, including a conversation in which Mr.
    Pacious expressed a desire to “take out” the person who
    “was screwing him over at NASA.” Finally, the third
    specification involved a conversation Mr. Pacious report-
    edly had with Mr. Howard in which Mr. Pacious com-
    plained to Mr. Howard that someone at NASA had ruined
    a potential job opportunity and that he “knew who’d done
    it” and was “gonna take care of him.”
    The workplace disturbance charge relates to Mr. Pa-
    cious’s behavior at the headquarters building on March
    25, 2010. The first specification alleged that Mr. Pacious
    shoved a chair, yelled at a special agent, and threw his
    duffel bag against the wall of the security office confer-
    ence room. The second specification alleged that Mr.
    Pacious yanked his duffel bag from the hands of a Federal
    Protective Service officer, resulting in a scuffle that led to
    the officers handcuffing Mr. Pacious.
    The administrative judge heard testimony and ulti-
    mately affirmed Mr. Pacious’s removal in the Initial
    Decision dated November 24, 2010. On June 27, 2011,
    the Board denied Mr. Pacious’s petition for review. Mr.
    Pacious has appealed, and we have jurisdiction under 
    28 U.S.C. § 1295
    (a)(9).
    II. ANALYSIS
    This court’s review of a decision of the Board is lim-
    PACIOUS   v. NASA                                         4
    ited by statute. 
    5 U.S.C. § 7703
    (c); O’Neill v. Office of
    Pers. Mgm’t, 
    76 F.3d 363
    , 364-65 (Fed. Cir. 1996). We
    may reverse a decision of the Board only if it is “(1) arbi-
    trary, 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).
    As an initial matter, while this appeal was pending
    Mr. Pacious filed two motions asking this court to compel
    NASA to produce certain information related to NASA’s
    surveillance of Mr. Pacious. The discovery period before
    the Board is closed, and there is no right to discovery on
    appeal. See United States v. Hicks, 278 F. App’x 976
    (11th Cir. 2008) (denying motions to compel production of
    documents on grounds that “neither the Federal Rules of
    Criminal Procedure nor the Federal Rules of Appellate
    Procedure authorize discovery on appeal”). Because this
    court’s review is limited to the evidence in the record
    before the Board, we cannot consider any new evidence
    presented for the first time on appeal. See Mueller v. U.S.
    Postal Serv., 
    76 F.3d 1198
    , 1201-02 (Fed. Cir. 1996)
    (“Because we are limited to reviewing decisions of the
    Board based on the record before the deciding official, we
    decline to base our judgment on evidence that was not
    part of the record before the administrative judge.”)
    (internal citation omitted). Moreover, such information is
    not necessary for resolving the issues presented in Mr.
    Pacious’s appeal. Consequently, those motions are de-
    nied.
    Turning to the merits, Mr. Pacious raises three argu-
    ments for reversing the Board’s decision. First, Mr.
    Pacious argues that the administrative judge erred in not
    sanctioning NASA with an adverse inference for its
    5                                          PACIOUS   v. NASA
    failure to maintain video recordings of the events occur-
    ring in the lobby of the headquarters building on March
    25, 2010. Second, Mr. Pacious argues that the adminis-
    trative judge should not have credited Major Stein’s and
    Mr. Howard’s testimony because they were unable to
    provide an exact date for the conversations they allegedly
    had with Mr. Pacious. Finally, Mr. Pacious argues that
    the administrative judge abused her discretion in not
    allowing him to question certain witnesses at the hearing.
    None of these arguments supports reversing the Board’s
    decision.
    First, without reaching the merits of Mr. Pacious’s
    sanction argument, even if we were to accept Mr. Pa-
    cious’s position that the administrative judge should have
    drawn an adverse inference against NASA for failing to
    preserve the video recordings, that evidence is only rele-
    vant to one of the five specifications against Mr. Pacious:
    Mr. Pacious’s alleged statement in the headquarters lobby
    on March 25, 2010, that he would “kill Kevin Winters.”
    The other specifications do not involve activity that oc-
    curred in the lobby, and Mr. Pacious has not argued that
    the video recordings would have been relevant to these
    other specifications. Because the administrative judge’s
    findings with respect to the remaining two specifications
    for threat of bodily harm and the two specifications for
    workplace disturbance provide substantial evidence for
    affirming NASA’s removal decision, the failure to main-
    tain the video recording does not require a reversal.
    Second, Mr. Pacious’s contention that the administra-
    tive judge erred in crediting the testimony of Major Stein
    and Mr. Howard similarly does not support reversing the
    Board’s decision. The administrative judge heard testi-
    mony from both Major Stein and Mr. Howard related to
    their respective conversations with Mr. Pacious and
    PACIOUS   v. NASA                                         6
    expressly found their testimony credible over Mr. Pa-
    cious’s testimony. As we have recognized, “[t]he credibil-
    ity determinations of an administrative law judge are
    virtually unreviewable on appeal.” Bieber v. Dep’t of the
    Army, 
    287 F.3d 1358
    , 1364 (Fed. Cir. 2002). Here, the
    administrative judge had the discretion to consider the
    witnesses’ ability to recall the date of these conversations
    in making her credibility determinations, and we will not
    second-guess those determinations on appeal.
    Finally, Mr. Pacious challenges the administrative
    judge’s refusal to allow him to question certain witnesses
    during the hearing. The administrative judge allowed
    Mr. Pacious to present five witnesses during the hearing
    and rejected his additional proposed witnesses as irrele-
    vant. Mr. Pacious contends that the administrative judge
    additionally should have allowed him to call John “Mark”
    Benson and investigator Keith Karnetsky. We disagree.
    “[A] ‘determination whether the testimony of witnesses
    should be presented is within the sound discretion of the
    [administrative judge].’” Haver v. Dep’t of Agric., 53 F.
    App’x 112, 115 (Fed. Cir. 2002) (quoting Davis v. Office of
    Pers. Mgmt., 
    918 F.2d 944
    , 946 (Fed. Cir. 1990)) (altera-
    tion in original). Here, having reviewed Mr. Pacious’s
    arguments with respect to the relevance of these wit-
    nesses, we conclude that the administrative judge did not
    abuse her discretion in finding that these witnesses were
    irrelevant to NASA’s removal action.
    Mr. Pacious’s additional arguments for reversing the
    Board’s decision also lack merit. Accordingly, the decision
    of the Board is affirmed.
    COSTS
    7                                          PACIOUS   v. NASA
    Each party shall bear its own costs.
    AFFIRMED
    

Document Info

Docket Number: 2011-3215

Citation Numbers: 469 F. App'x 874

Judges: Mayer, O'Malley, Per Curiam, Prost

Filed Date: 2/9/2012

Precedential Status: Non-Precedential

Modified Date: 8/5/2023