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

NOTE: This disposition is nonprecedential.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