Faciane v. United States Postal Service , 173 F. App'x 819 ( 2006 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is
not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3209
KIRBY A. FACIANE,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________
DECIDED: March 10, 2006
__________________________
Before MICHEL, Chief Judge, MAYER, and BRYSON, Circuit Judges.
PER CURIAM.
Kirby A. Faciane appeals the final decision of the Merit Systems Protection
Board, denying his petition for review of the board’s initial decision affirming his removal
from government service by the United States Postal Service. Faciane v. U.S. Postal
Service, SF0752040005-I-3 (MSPB Mar. 4, 2005). We affirm.
We must affirm the board’s decision unless it was arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law; obtained without procedures
required by law, rule or regulation having been followed; or unsupported by substantial
evidence. 5 U.S.C. § 7703(c) (2000). The board properly considered the relevant
evidence before it and did not abuse its discretion in making its credibility
determinations. Substantial evidence supports the board’s findings that the agency
proved its charges against Faciane by a preponderance of the evidence, that there was
a nexus between Faciane’s removal and promoting the efficiency of the agency’s
operations, and that the penalty imposed was not an abuse of the agency’s discretion.
Additionally, the board properly concluded that the agency was not required to show
that Faciane violated a specific rule, regulation, or policy. See LaChance v. MSPB, 147
F.3d 1367, 1371-72 (Fed. Cir. 1998).
Faciane waived his claims for disability discrimination and violation of the Family
and Medical Leave Act by not presenting them to the board. Furthermore, his claims for
procedural defects that allegedly occurred before the board and during the agency’s
disciplinary proceedings are not applicable to the disciplinary proceedings at hand.
05-3209 2