Scott v. Department of Defense , 177 F. App'x 79 ( 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
06-3033
WILL B. SCOTT,
Petitioner,
v.
DEPARTMENT OF DEFENSE,
Respondent.
__________________________
DECIDED: April 7, 2006
__________________________
Before MAYER, LOURIE, and LINN, Circuit Judges.
PER CURIAM.
Will B. Scott (“Scott”) appeals a final decision of the Merit Systems Protection
Board (“Board”), Scott v. Dep’t of Def., No. AT-0752-04-0737-I-1 (M.S.P.B. Sept. 8,
2005) (“Final Order”), denying Scott’s petition for review of the administrative judge’s
(“AJ”) initial decision, dismissing Scott’s appeal of his removal by the Department of
Defense (“agency”) based on a charge of conduct unbecoming a federal employee.
Scott v. Dep’t of Def., No. AT-0752-04-0737-I-1 (M.S.P.B. Oct. 26, 2004) (“Initial
Decision”). Because the Board’s decision sustaining the charge and the removal is
supported by substantial evidence, is not an abuse of discretion, and does not
otherwise contain reversible error, we affirm.
BACKGROUND
Scott had been employed by the agency for approximately twenty-four years at
the time of his removal from the position of Commissary Officer in Meridian, Mississippi.
The charge against Scott was based on incidents of alleged sexual misconduct that
came to light during the week of March 15, 2004.
On April 27, 2004, the agency proposed to remove Scott based on eight
specifications of a charge of conduct unbecoming a federal employee. Scott denied all
of the specifications. On June 22, 2004, the agency issued a letter of decision finding
that Scott’s removal was in order. Scott timely appealed to the Board.
After conducting a hearing, the AJ sustained seven of the eight specifications
asserted by the agency and found that the penalty of removal was reasonable. Initial
Decision. The AJ’s decision became the final decision of the Board after the Board
denied Scott’s petition for review. See Final Order, slip op. at 2. Scott timely appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
A. Standard of Review
This court must affirm an MSPB decision unless it is: “(1) arbitrary, 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); see also Hayes v. Dep’t of the Navy, 727
F.2d 1535, 1537 (Fed. Cir. 1984). The burden of establishing reversible error in a
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Board decision rests upon the petitioner. Harris v. Dep’t of Veterans Affairs, 142 F.3d
1463, 1467 (Fed. Cir. 1998).
B. Analysis
On appeal, Scott contends that the Board’s decision was incorrect for three main
reasons. First, Scott argues that the AJ mischaracterized witness testimony and failed
to consider a statement from a Ms. Derusha. Second, Scott argues that the AJ made a
mistake in determining the facts. Third, Scott argues that the Board failed to consider
his 2000-2003 performance evaluations, which, he states, were outstanding and
excellent.
Regarding Scott’s contentions that the AJ mischaracterized witness testimony,
Scott did not provide the Court with a transcript. Thus, he may not “rely on any part of
the record of the hearing” on appeal. Gonzales v. Def. Logistics Agency, 772 F.2d 887,
891 (Fed. Cir. 1985); Fed. R. App. P. 10(b). In the absence of the transcript, we have
no basis to conclude that the AJ abused her discretion in considering witness testimony.
Scott further contends that the AJ failed to consider a statement from Ms.
Derusha. We disagree. Ms. Derusha’s statement alleges that Brandenburg stated that
Scott deliberately prevented her from receiving social security disability benefits.
However, the record shows that the AJ considered Scott’s argument regarding
Brandenburg’s motivation to “get” him. Initial Decision, slip op. at 4 (stating that Scott
argued that “Brandenburg was out to ‘get’ him because he did not tell an individual from
the Social Security Administration that she was disabled when that individual contacted
the appellant after Brandenburg filed for a disability retirement”).
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Regarding Scott’s argument that the AJ erred in determining the facts, we
conclude that substantial evidence supports the Board’s decision. The AJ’s
determinations on the facts were based in large part on the credibility of witnesses.
Because the AJ is in the best position to evaluate witness credibility, her credibility
determinations are “virtually unreviewable” on appeal, see Hambsch v. Dep’t of the
Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986), and will not be disturbed unless
inherently improbable, discredited by undisputed evidence, or contrary to physical facts,
Hanratty v. Dep’t of Transp., 819 F.2d 286, 288 (Fed. Cir. 1987). Scott’s allegations of
conflicting testimony and of motivation to fabricate do not meet the high burden required
to disturb the AJ’s credibility determinations.
Finally, we do not agree with Scott’s contention that the Board failed to consider
his 2000-2003 performance evaluations. While the Board did not explicitly address his
performance evaluations, the Board noted Scott’s “years of service and the absence of
any prior discipline.” Initial Decision, slip op. at 17. Notwithstanding his employment
record, the Board found the penalty of removal was reasonable in view of the
seriousness of the conduct. We do not discern any error in the Board’s penalty
determination.
For the foregoing reasons, we conclude that the Board’s decision sustaining the
charge of conduct unbecoming a federal employee, and affirming the penalty of removal
is supported by substantial evidence, is not an abuse of discretion, and does not
otherwise contain reversible error. Accordingly, we affirm the Board’s decision.
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