Sanders v. Dhs , 625 F. App'x 549 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TY K. SANDERS,
Petitioner
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent
______________________
2015-3080
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0752-13-0313-I-1.
______________________
Decided: August 13, 2015
______________________
TY K. SANDERS, Cedar Key, FL, pro se.
MARTIN M. TOMLINSON, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by ALLISON KIDD-MILLER, BENJAMIN C. MIZER, ROBERT
E. KIRSCHMAN, JR.
______________________
Before WALLACH, BRYSON, and HUGHES, Circuit Judges.
2 SANDERS v. DHS
PER CURIAM.
Ty Sanders appeals from a judgment of the Merit Sys-
tems Protection Board affirming the Department of
Homeland Security’s removal of Mr. Sanders from em-
ployment. Mr. Sanders alleges various deficiencies in the
Board’s decision, including the Board’s consideration of
expert testimony. Because the Board’s decision contains
no reversible error, we affirm.
I
Mr. Sanders was employed by Homeland Security as a
Customs and Border Protection Officer (“border officer”).
Following an incident at work, Mr. Sanders’s supervisors
required him to undergo a fitness-for-duty evaluation,
which included an in-person interview by Dr. Skop and a
review of the evidence by Dr. Prunier. Both doctors
concluded that Mr. Sanders was not fit for duty in the
border officer position.
Based on the conclusions of this first set of medical
examiners, Homeland Security removed Mr. Sanders from
his position. Mr. Sanders appealed to the MSPB. While
the appeal was pending, Mr. Sanders underwent two
additional medical evaluations, with Dr. Michael Gower
and Dr. Tonia Werner. This second set of medical exam-
iners concluded that Mr. Sanders did not suffer any
diagnosable mental illness and that he was fit for duty.
An administrative judge of the MSPB considered the
appeal and issued an initial decision. In the initial deci-
sion, the administrative judge gave more weight to the
testimony of the second set of medical examiners. In
addition, the administrative judge reasoned that the
testimony of the second set of medical examiners evi-
denced that Mr. Sanders had recovered from any condi-
tion that had been diagnosed by the first set of medical
examiners. On these bases, the administrative judge
reversed the removal of Mr. Sanders.
SANDERS v. DHS 3
The agency appealed. The Board reversed the admin-
istrative judge’s initial decision and sustained the remov-
al action. In the final decision, the Board discussed the
competing evaluations of the two sets of medical examin-
ers. Contrary to the initial decision, in the final decision
the Board gave more weight to the testimony of the first
set of medical examiners. In particular, the Board rea-
soned that the first set of medical examiners was more
familiar with the border officer position and its concomi-
tant responsibilities, and that the second set of medical
examiners had failed to address certain concerns as to
substance abuse raised in the evaluations of the first set
of medical examiners.
Mr. Sanders appealed to this court.
II
We have jurisdiction under 28 U.S.C. § 1295(a)(9)
(2012). 1 We will set aside any decision of the Board that
is “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c) (2012); see also Kewley v. Dep’t
of Health and Human Servs., 153 F.3d 1357, 1361 (Fed.
Cir. 1998). As to element (3), substantial evidence is
1 Mr. Sanders presented a discrimination claim in
his initial appeal as decided by the administrative judge.
A23–24. However, Mr. Sanders did not appeal the admin-
istrative judge’s ruling in favor of Homeland Security on
the discrimination claim to the full board. A4. Mr. Sand-
ers further does not appeal the discrimination claim to
this court and has affirmatively waived any such claim.
See Form 10 Statement Concerning Discrimination, ECF
No. 4. As such, we have no reason to question our juris-
diction. Cf. Kloeckner v. Solis, 133 S. Ct. 596 (2012).
4 SANDERS v. DHS
“such relevant evidence as a reasonable mind might
accept as adequate to support” the Board’s conclusion.
Consol. Edison Co. v. Nat’l Labor Relations Bd., 305 U.S.
197, 229 (1938). We review, using the standard of
§ 7703(c), the Board’s determination that Homeland
Security properly removed Mr. Sanders.
The Board’s determination that Homeland Security
met its burden is not arbitrary or capricious and is sup-
ported by substantial evidence. The Board’s conclusion
that Mr. Sanders’s mental condition disqualified him from
performing in the border officer position is clearly sup-
ported by the testimony of the first set of medical examin-
ers. Though the testimony of the second set of medical
examiners was to the contrary, the Board properly exer-
cised its discretion to determine that the testimony of the
first set of medical examiners was more probative as
being more closely tailored to the duties of the border
officer position. In addition, the Board discounted the
value of the testimony of the second set of medical exam-
iners for failure to address the substance abuse findings
of the first set of medical examiners. As such, the Board
considered the evidence presented and found a prepon-
derance favoring Homeland Security’s position. This
conclusion was not arbitrary or capricious, lacking for
substantial evidence, or otherwise falling within the scope
of § 7703(c).
Mr. Sanders alleges error in the Board’s consideration
and weighing of the various forms of expert testimony. In
particular, Mr. Sanders questions whether the Board
sufficiently considered the entirety of the evidence, and
whether the Board properly weighed the expert testimony
evidence from the two sets of medical examiners. As to
the former challenge, Mr. Sanders refers to the “Memo-
randum of Transcript: Oral Reply” document as demon-
strating the failure of the Board to consider the entirety of
the evidence. While it is unclear from the final decision
whether the Board fully considered this document in
SANDERS v. DHS 5
making its judgment, our review of this document does
not reveal any evidence sufficient to overcome the reason-
ing otherwise put forward by the Board. As to the latter
challenge, this court will not “substitute our judgment for
that of the board as to the weight of the evidence or the
inferences to be drawn therefrom.” See, e.g., Cross v.
Dep’t of Transp., 127 F.3d 1443, 1448 (Fed. Cir. 1997).
Mr. Sanders also alleges error in the Board’s consid-
eration of traveler complaints related to Mr. Sanders’s
performance as a border officer. In particular,
Mr. Sanders questions whether the traveler complaints
were legitimate evidence or inadmissible hearsay, with
reference made to the Federal Rules of Evidence. While
the Rules of Evidence may be “a helpful guide to proper
hearing practices,” they do not control Board proceedings.
Yanopoulos v. Dep’t of Navy, 796 F.2d 468, 471 (Fed. Cir.
1986). In any event, it does not appear that the traveler
complaints played any significant part in either the
evaluations of the two sets of medical examiners or the
Board’s final decision. Therefore, even if the traveler
complaints were inadmissible, that status would not
render the substantial evidence supporting the Board’s
conclusion thus inadequate.
For these reasons, Mr. Sanders has failed to show
that the Board’s final decision contained reversible error
under § 7703(c). Accordingly, we affirm the Board’s
judgment in reinstating Homeland Security’s removal of
Mr. Sanders.
AFFIRMED
No costs.