Benton-El v. Department of Air Force

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
CHRISTOPHER A. BENTON-EL,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
__________________________
2011-3117
__________________________
Petition for review of the Merit Systems Protection
Board in case no. AT0752090709-I-2.
____________________________
Decided: February 10, 2012
____________________________
CHRISTOPHER A. BENTON-EL, of College Park, Georgia,
pro se.
SARAH M. BIENKOWSKI, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
her on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and REGINALD T.
BLADES, JR., Assistant Director.
__________________________
BENTON-EL v. AIR FORCE 2
Before LOURIE, DYK, and PROST, Circuit Judges.
PER CURIAM.
Christopher A. Benton-El (“Benton-El”) appeals from
the final decision of the Merit Systems Protection Board
(“the Board”). Benton-El v. Dep’t of the Air Force, No. AT-
0752-09-0709-I-2 (M.S.P.B. Feb. 24, 2011). In its decision,
the Board denied review of the initial decision of the
Administrative Judge (“AJ”) which affirmed Benton-El’s
removal from the Federal service based on a charge of
misconduct. We affirm.
BACKGROUND
Benton-El was employed as a Contract Specialist in
the Department of the Air Force (“Air Force”) from 1985
to 2009. On February 4, 2009, while employed in the Air
Force, Benton-El was convicted of 23 counts of “Unlawful
Recording of Recorded Material” in the Superior Court of
Houston County, Georgia, and sentenced to one year of
confinement. On April 24, 2009, the Air Force sent Ben-
ton-El a notice of decision to remove him from service
effective May 8, 2009. His removal was based on a charge
of off-duty misconduct predicated on his convictions.
Benton-El appealed his removal to the Board. On
April 22, 2010, the AJ ordered Benton-El to file a state-
ment of any affirmative defenses by May 14, 2010; how-
ever, Benton-El failed to file such a statement. On June
18, 2010, the AJ held a hearing on Benton-El’s appeal.
During the hearing, Colonel Stephen J. Niemantsverdriet,
Benton-El’s commanding officer who had signed Benton-
El’s notice of removal, and Mr. Wiley Baxter, an Em-
ployee Relations Specialist for the Air Force, were called
as witnesses for the agency. During Benton-El’s cross-
examination of Mr. Baxter, the AJ refused to allow Ben-
ton-El to question the witness as to whether Colonel
3 BENTON-EL v. AIR FORCE
Niemantsverdriet himself made the decision to remove
Benton-El. The ground was that Benton-El had failed to
raise a harmful error affirmative defense by the previ-
ously set May 14 deadline. On June 25, 2010, the AJ
issued an initial decision affirming Benton-El’s removal
from the Air Force. The AJ indicated that he found
Colonel Niemantsverdriet’s testimony credible to estab-
lish that the Air Force had considered the relevant factors
and exercised management discretion within tolerable
limits of reasonableness.
Benton-El petitioned the Board for review of the AJ’s
initial decision, alleging, inter alia, that the AJ improp-
erly refused to allow him to question Mr. Baxter as to who
ultimately made the removal decision. On February 24,
2011, the Board denied Benton-El’s petition for review,
concluding that there was no new, previously unavailable
evidence, and that the AJ made no error in law or regula-
tion which would affect the outcome of the decision.
Additionally, the Board found that the AJ limited Benton-
El’s cross-examination of Mr. Baxter because Benton-El
had failed to raise an allegation of harmful error by the
deadline set for raising issues, and he was therefore
precluded from raising a harmful error claim before the
AJ. Accordingly, the Board found no error in the AJ’s
decision to limit the testimony of Mr. Baxter. This appeal
followed. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
Our review of Board decisions is limited. We may
only set aside agency actions, findings, or conclusions that
we find to be “(1) arbitrary, capricious, an abuse of discre-
tion, 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
BENTON-EL v. AIR FORCE 4
evidence.” 5 U.S.C. § 7703(c); see also Bennett v. Merit
Sys. Prot. Bd., 635 F.3d 1215, 1218 (Fed. Cir. 2011). “A
determination to allow or exclude witness testimony is
within the sound discretion of the administrative judge.”
Guise v. Dep’t of Justice, 330 F.3d 1376, 1379 (Fed. Cir.
2003). Thus, we review evidentiary rulings by the AJ for
abuse of discretion and will reverse only if the petitioner
can “prove that the error caused substantial harm or
prejudice to his rights which could have affected the
outcome of the case.” Curtin v. Office of Pers. Mgmt., 846
F.2d 1373, 1379 (Fed. Cir. 1988).
The AJ excluded testimony as to which person within
the agency made the final decision to remove Benton-El
from the Air Force. See Hearing at 37:38, Benton-El v.
Dep’t of the Air Force, No. AT-0752-09-0709-I-2 (M.S.P.B.
June 18, 2010). Benton-El does not challenge this aspect
of the AJ’s evidentiary ruling, which was the only eviden-
tiary ruling considered by the full Board. Instead, Ben-
ton-El alleges that the Board erred in rejecting his
challenge to the AJ’s decision to limit other portions of the
testimony of Mr. Baxter. Specifically, he argues that the
AJ excluded testimony showing that the Air Force failed
to follow its own procedures in deciding on his removal
because it failed to consider all of the relevant Douglas
factors, see Douglas v. Veterans Admin., 5 M.S.P.R. 280,
305-06 (M.S.P.B. 1981), set forth in Air Force Instruction
36-704, paragraph 32.2. Benton-El alleges that the AJ
excluded testimony that the Air Force failed to consider
any alternative sanctions to removal (Douglas factor 12)
and that not all employees who have been convicted of a
crime are terminated (Douglas factor 6). Unfortunately,
the agency does not address this aspect of Benton-El’s
argument on appeal. Nonetheless, we find no error in the
Board’s decision.
5 BENTON-EL v. AIR FORCE
A review of the record reveals that the AJ did not
limit testimony relating to whether the agency considered
the relevant Douglas factors. In fact, Benton-El cross-
examined Colonel Niemantsverdriet, the deciding official,
at length as to his consideration of each of the relevant
Douglas factors and he testified about his determinations
as to each factor. See Hearing at 55:53, Benton-El, No.
AT-0752-09-0709-I-2. Additionally, Benton-El was al-
lowed to cross-examine Mr. Baxter on his consideration of
relevant Douglas factors, and the AJ admitted and con-
sidered Mr. Baxter’s testimony that he did not consider
any alternative sanctions to removal. See id. at 31:10.
Benton-El was also allowed to question Mr. Baxter as to
the disparate treatment issue. Mr. Baxter specifically
testified that he did not recall any situations where he
recommended an alternative sanction for an employee
who had been sentenced to prison. See id. at 28:33. The
AJ did not exclude this testimony. Because the AJ did
not in fact bar the testimony in question, we find no error
in the Board’s decision.
COSTS
No costs.