Abou-Hussein v. Department of the Navy , 640 F. App'x 897 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HAMDY ALEX ABOU-HUSSEIN,
Petitioner
v.
DEPARTMENT OF THE NAVY,
Respondent
______________________
2015-3057
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-13-6851-I-1.
______________________
Decided: February 11, 2016
______________________
HAMDY ALEX ABOU-HUSSEIN, North Charleston, SC,
pro se.
RUSSELL JAMES UPTON, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
REGINALD T. BLADES, JR.
______________________
2 ABOU-HUSSEIN v. DEP’T OF THE NAVY
Before PROST, Chief Judge, DYK and WALLACH, Circuit
Judges.
PER CURIAM.
Petitioner Hamdy Alex Abou-Hussein appeals a final
decision of the Merit Systems Protection Board (“MSPB”),
which affirmed the Department of the Navy’s (“Navy”)
decision to remove him from his post. See Hamdy A.
Abou-Hussein v. Dep’t of the Navy, No. AT-0752-13-6851-
I-1 (Nov. 5, 2014) (Final Order) (Resp’t’s App. 1–10);
Hamdy A. Abou-Hussein v. Dep’t of the Navy, No. AT-
0752-13-6851-I-1 (Mar. 18, 2014) (Initial Decision)
(Resp’t’s App. 13–19). For the reasons set forth below, we
affirm.
BACKGROUND
Mr. Abou-Hussein served as a Mechanical Engineer
at the Space and Naval Warfare Systems Center in
Charleston, South Carolina. In 2013 the Navy removed
him from his post, citing “misconduct.” Resp’t’s App. 107,
111. Mr. Abou-Hussein challenged the removal before the
MSPB.
In an Initial Decision, an MSPB administrative judge
(“AJ”) found the Navy had established, by a preponder-
ance of the evidence, that Mr. Abou-Hussein had engaged
in disrespectful conduct toward his supervisor, failed to
carry out his supervisor’s instructions to complete certain
paperwork and travel outside the United States as part of
his job, and “failed to cooperate in a pre-action investiga-
tive discussion” with his second-level supervisor, Michael
Johnson. Id. at 15–16. The AJ further found Mr. Abou-
Hussein failed to establish the Navy retaliated against
him for whistleblowing, noting “he failed to submit any
evidence” to support such a claim. Id. at 17.
In addition, the AJ found the removal promoted the
efficiency of the service and constituted a reasonable
ABOU-HUSSEIN v. DEP’T OF THE NAVY 3
penalty under the circumstances. Those circumstances
included that Mr. Abou-Hussein: (1) “intentionally failed
to perform duties of his position”; (2) “provided no excuse
for his refusal to travel abroad”; and (3) had previously
been reprimanded and suspended based on workplace
behavior. Id. at 19. Mr. Abou-Hussein petitioned the
MSPB for review of the AJ’s Initial Decision, and a three-
member panel of the MSPB affirmed, issuing a Final
Order that declared the AJ’s Initial Decision to be the
MSPB’s final decision. Mr. Abou-Hussein timely appeals.
This court has jurisdiction over final decisions of the
MSPB under 28 U.S.C. § 1295(a)(9) (2012).
DISCUSSION
I. Standard of Review
When reviewing final decisions of the MSPB, “th[is]
court shall review the record and hold unlawful and set
aside any agency action, findings, or conclusions” that are
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c) (2012). We review the MSPB’s
legal determinations de novo. Welshans v. U.S. Postal
Serv., 550 F.3d 1100, 1102 (Fed. Cir. 2008).
II. The MSPB’s Final Decision Affirming the Navy’s
Removal of Mr. Abou-Hussein Was Supported by Sub-
stantial Evidence
In the Initial Decision (which became the MSPB’s fi-
nal decision), the AJ considered the Navy’s allegations of
Mr. Abou-Hussein’s misconduct and found they were
supported by “preponderant evidence.” Resp’t’s App. 14.
The AJ addressed the evidence at length, finding Mr.
Abou-Hussein “did not offer any evidence to refute the
[Navy’s] accounts of his behavior.” Id. at 16. The AJ
4 ABOU-HUSSEIN v. DEP’T OF THE NAVY
discussed, among other things, declaration testimony of
Mr. Abou-Hussein’s supervisor Ray E. Gay and his second
level supervisor Michael Johnson with respect to Mr.
Abou-Hussein’s uncooperative behavior, failure to follow
instructions, and disrespectful conduct. The AJ also
noted testimony of the Navy’s deciding official, Com-
mander Gary L. Morris, who described Mr. Abou-
Hussein’s record of previous similar offenses and lack of
behavioral improvement following an earlier fourteen-day
suspension.
On appeal to this court, Mr. Abou-Hussein does not
challenge the sufficiency of the evidence supporting his
removal, nor does he assert that removal was an unrea-
sonable remedy that was disproportionate to his miscon-
duct. See, e.g., Pet’r’s Br. 7 (stating “[t]he case is about
whether the Navy’s pre-removal retaliatory conduct is
discoverable when a Federal employee [i.e., Mr. Abou-
Hussein] is on a terrorist watch list despite the fact
that . . . his security clearance” was not revoked), 16
(asserting “the AJ acted in retaliation” against Mr. Abou-
Hussein (capitalization omitted)), 18 (arguing Mr. Abou-
Hussein’s “right to discovery” in light of his asserted
status as a whistleblower (capitalization omitted)).
Because Mr. Abou-Hussein does not challenge the suffi-
ciency of the evidence, and in light of the testimony of
Messrs. Gay, Johnson, and Morris, we conclude the AJ’s
decision to affirm the Navy’s removal of Mr. Abou-
Hussein was “supported by such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion, i.e., substantial evidence.” Gallagher v. Dep’t
of the Treasury, 274 F.3d 1331, 1336 (Fed. Cir. 2001)
(internal quotation marks and citation omitted). We
further conclude the MSBP did not abuse its discretion in
determining the Navy’s action in removing Mr. Abou-
Hussein was reasonable.
ABOU-HUSSEIN v. DEP’T OF THE NAVY 5
III. Mr. Abou-Hussein’s Assertions of Error
Mr. Abou-Hussein makes several assertions of error.
First, he asserts he was improperly denied a hearing
when, after he failed to appear for a hearing on December
2, 2013, the AJ rejected his request to reschedule and
instead “decided [the appeal] based upon the documentary
submissions of the parties.” Resp’t’s App. 38. Mr. Abou-
Hussein explains he “[notified] the AJ five (5) days before
the scheduled hearing,” which was to take place in
Charleston, South Carolina, “that [a] snow blizzard and
snow accumulation is preventing him from driving down
the mountains” near Hendersonville, North Carolina,
where he was “stranded.” Pet’r’s Br. 16; see also id. at 11–
12; Reply Br. 3–4. He further notes that “when the snow
partially melted and rural roads became passable, [he]
chose to attempt to reach the much nearer Atlanta Re-
gional Office to prove by his appearance that he is not
foregoing his due process right to a hearing.” Id. at 16.
A motion for postponement will be granted “only upon
a showing of good cause.” 5 C.F.R. § 1201.51 (2015).
Here, after Mr. Abou-Hussein failed to appear, the AJ
issued a show cause order. She considered his assertions
with respect to the inclement weather but concluded he
had “failed to establish good cause for his absence,”
Resp’t’s App. 13, because, “given his representation that
on the day of the hearing, he appeared in Atlanta for the
hearing, the weather obviously did not affect his ability to
travel,” id. at 38. 1 The AJ’s denial of Mr. Abou-Hussein’s
request to reschedule therefore was not arbitrary, and
1 She further noted Mr. Abou-Hussein’s motion to
postpone was filed “on November 27, the eve of Thanks-
giving,” and that she “did not receive a copy of the motion”
until she arrived “at the hearing site on the day of the
hearing.” Id. at 37.
6 ABOU-HUSSEIN v. DEP’T OF THE NAVY
affirmance of the AJ’s decision by the MSPB panel did not
constitute an abuse of discretion.
Mr. Abou-Hussein also asserts the AJ was biased and
should have been disqualified because her “office was
subject to an investigation by its own Inspector General”
as a result of “[Mr.] Abou-Hussein’s 2011 complaint.”
Pet’r’s Br. 17; see Pet’r’s App. 55 (letter from the MSPB
Office of the General Counsel to Mr. Abou-Hussein,
addressing his allegations that the MSPB engaged in
“spoliation of evidence of Criminal Assault on [Mr. Abou-
Hussein’s] person” (internal quotation marks omitted)).
As this court has explained,
“opinions formed by [a] judge on the basis of facts
introduced or events occurring in the course of the
current proceedings, or of prior proceedings, do
not constitute a basis for a bias or partiality mo-
tion unless they display a deep-seated favoritism
or antagonism that would make fair judgment
impossible.”
Bieber v. Dep’t of the Army, 287 F.3d 1358, 1362 (Fed. Cir.
2002) (alterations omitted) (emphasis removed) (quoting
Liteky v. United States, 510 U.S. 540, 555 (1994)). The
MSPB considered this standard and concluded Mr. Abou-
Hussein had not made such a showing.
On appeal to this court, Mr. Abou-Hussein makes a
similar argument, asserting deep-seated antagonism was
created by “the earlier spoliated audio in the past [pre-
hearing conference] controversy,” in “which the same AJ
dismissed [Mr.] Abou-Hussein’s . . . appeal.” Pet’r’s Br. 9;
see also id. at 17 (asserting “the [MSPB] missed its own
binding regulations as they apply to the disqualification of
an [AJ] whose office was subject to an investigation by its
own Inspector General”). He explains that during that
pre-hearing conference, which occurred in 2010 and which
was related to a previous action that is not directly a part
ABOU-HUSSEIN v. DEP’T OF THE NAVY 7
of the present appeal, “the Navy attorney approving
[certain allegedly] fraudulent subcontracts . . . made a
death threat [against Mr. Abou-Hussein], and the Atlanta
[MSPB] Judges erased six (6) minutes of audio recorded
by their phone conferencing system.” Id. at 14. In the
present proceeding, the full panel of the MSPB considered
Mr. Abou-Hussein’s assertion of bias and concluded he
“ha[d] not shown that the [AJ] committed an error or
otherwise abused her discretion.” Resp’t’s App. 7.
Although Mr. Abou-Hussein points to his role in
bringing about the “MSPB [Inspector General’s] investi-
gation of the AJ Atlanta office,” Pet’r’s Br. 17, he does not
identify any record evidence demonstrating the “‘opinions
formed by the judge,’” in this case by the AJ, “‘display a
deep-seated . . . antagonism.’” Bieber, 287 F.3d at 1362
(alteration omitted) (emphasis modified) (quoting Liteky,
510 U.S. at 555). Although he notes the AJ’s dismissal of
his previous appeal, a dismissal without more does not
suggest antagonism.
Mr. Abou-Hussein further asserts “the [MSPB] ig-
nored his motion” for recusal of the AJ, and that the
“Initial Decision is premature until all outstanding mo-
tions are resolved.” Pet’r’s Br. 18. Given Mr. Abou-
Hussein’s acknowledgement that the “AJ[] deni[ed] . . .
the motion,” id., we see no basis for his assertion that the
motion had not been resolved at the time of the Initial
Decision.
CONCLUSION
We have considered Mr. Abou-Hussein’s remaining
arguments and find them unpersuasive. For these rea-
sons, the decision of the Merit Systems Protection Board
is
AFFIRMED