Hall v. Transportation

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
QUINCY D. HALL,
Petitioner
v.
DEPARTMENT OF TRANSPORTATION,
Respondent
______________________
2015-3011
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0752-12-0006-B-1.
______________________
Decided: April 8, 2015
______________________
QUINCY D. HALL, Houston, TX, pro se.
DANIEL S. HERZFELD, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., FRANKLIN
E. WHITE, JR.
______________________
Before LOURIE, TARANTO, and HUGHES, Circuit
Judges.
2 HALL v. TRANSPORTATION
PER CURIAM.
Quincy D. Hall (“Hall”) appeals from the final order of
the Merit Systems Protection Board (the “Board”) affirm-
ing the decision by the Department of Transportation
Federal Aviation Administration (the “FAA”) to remove
him from the position of air traffic control specialist at the
Houston Intercontinental Tower. See Hall v. Dep’t of
Transp., No. DA-0752-12-0006-B-1, 2014 WL 5338879(M.S.P.B. July 10, 2014) (“Final Order”); Hall v. Dep’t of
Transp., No. DA-0752-12-0006-B-1, 2013 WL 6384048(M.S.P.B. June 6, 2013) (“Initial Decision After Remand”);
Hall v. Dep’t of Transp., 119 M.S.P.R. 180 (2013) (“Re-
mand Order”); Hall v. Dep’t of Transp., No. DA-0752-12-
0006-I-1, 2012 WL 543856 (M.S.P.B. Jan. 31, 2012) (“Ini-
tial Decision”). Because the Board’s decision contained no
error of law, and its factual determinations were support-
ed by substantial evidence, we affirm.
BACKGROUND
In September 2006, Hall began employment with the
FAA at the San Juan air traffic control tower in Puerto
Rico. In July 2007, the FAA terminated his employment
during his probationary period. The FAA noted that Hall
“continue[d] to have multiple safety related performance
deficiencies at the Flight Data/Clearance Delivery posi-
tion despite recent skill enhancement and remedial
training,” and that his employment would not “promote
the efficiency of the service.” Resp’t’s App. at 60.
In September 2008, Hall entered the FAA’s National
Air Traffic Technical Training Program (“NATTTP”) to
certify as an air traffic control specialist at the Houston
Intercontinental Tower. Hall’s training was terminated
in October 2010 due to his failure to successfully complete
the Local Control phase of the program. On August 12,
2011, the FAA issued a notice proposing to remove Hall
from employment for his failure to complete the required
training and denied his request for placement at a lower
HALL v. TRANSPORTATION 3
level facility. Id. at 63–65. The FAA’s Air Traffic Manag-
er explained that Hall was “a developmental employee
who ha[d] failed to progress” in the training program, and
that he did not qualify for placement at a lower level
facility under the FAA’s Human Resources Policy Manual
EMP 1.14. Id. The manager also stated that Hall had not
“exhibited sufficient skills to be recommended for place-
ment at another lower level facility,” and that his “previ-
ous employment with the FAA reflect[ed] that [he had]
already been unsuccessful at a lower level facility.” Id.On September 16, 2011, the FAA removed Hall for his
failure to successfully complete the NATTTP. Id. at 68–
70. Hall appealed to the Board. The Administrative
Judge (“AJ”) issued an initial decision affirming the FAA’s
removal decision. Initial Decision, ¶¶ 2, 15. Hall peti-
tioned for review by the full Board, which affirmed the
AJ’s finding that the FAA had proven its charge, but
vacated the AJ’s decision on “nexus and penalty” because
the AJ failed to address Hall’s affirmative defenses.
Remand Order, 119 M.S.P.R. at 181–82 & n.2. The Board
thus remanded the appeal and instructed the AJ to issue
an initial decision addressing those defenses. Id. at 184.
On remand, the AJ advised Hall of his burden of prov-
ing the affirmative defenses and provided the parties with
an opportunity to submit additional evidence and argu-
ment. Resp’t’s App. at 52–53, 55–57. In June 2013, the
AJ issued another initial decision, finding that Hall failed
to prove each of his affirmative defenses, and again af-
firmed the FAA’s removal decision. Initial Decision After
Remand, ¶¶ 2, 5, 15, 17, 20, 23. The AJ rejected Hall’s
argument that the FAA’s Human Resources Policy Manu-
al EMP 1.14, ¶ 6(e) required the agency to reassign him to
a lower level facility, reasoning that:
The provision speaks to situations where an em-
ployee who has failed to successfully complete
training at the “Academy” is reemployed by the
4 HALL v. TRANSPORTATION
agency. At issue in this appeal is not the appel-
lant’s reemployment. The issue is whether the
agency had an obligation to reassign the appellant
to a lower level facility after the appellant failed
to successfully complete his training at the IAH.
Initial Decision After Remand, at ¶ 15. Moreover, the AJ
found that Hall failed to show that the FAA was required
under the collective bargaining agreement to reassign
Hall to a lower level facility after he failed to successfully
complete his training. Id.
Hall again petitioned for review, and the full Board
denied the petition and affirmed the AJ’s 2013 initial
decision, which became the Board’s final decision. Final
Order, ¶ 1. The Board found that Hall only disagreed
with the AJ’s factual findings, but failed to show that the
AJ “made erroneous findings of material fact, erroneously
interpreted statutes or regulations, or erroneously applied
the law to the facts of the case.” Id. at ¶ 7. The Board
specifically determined that the AJ correctly interpreted
EMP 1.14, ¶ 6(e) and that it was “inapplicable here be-
cause [Hall] was not reemployed by the agency.” Id.
Hall appealed to this court. We have jurisdiction un-
der 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We can only set aside the Board’s deci-
sion if it was “(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 Briggs
v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir.
2003). The Board’s decision is supported by substantial
evidence “if it is supported by such relevant evidence as a
reasonable mind might accept as adequate to support a
HALL v. TRANSPORTATION 5
conclusion.” Brewer v. U.S. Postal Serv., 647 F.2d 1093,
1096 (Ct. Cl. 1981) (internal quotation marks omitted).
The Board’s legal determinations are reviewed de novo.
Salmon v. Soc. Sec. Admin., 663 F.3d 1378, 1381 (Fed.
Cir. 2011).
Hall argues that the AJ misinterpreted EMP 1.14,
¶ 6(e) and that the full Board misconstrued the AJ’s
decision. According to Hall, EMP 1.14, ¶ 6(e) applies in
his case because the FAA rehired him in Houston after he
left his position in Puerto Rico. Hall asserts that
EMP 1.14, ¶ 6(e) requires the FAA to reassign a rehired
employee to a lower level facility. He maintains, moreo-
ver, that he resigned from the position in Puerto Rico for
personal reasons, and that the Board erred in finding that
he was a “training failure.” Reply Br. 2. Finally, Hall
contends that the Board erred because it did not specifi-
cally address each of his affirmative defenses in the final
order.
The government responds that the Board correctly de-
termined that the FAA had no obligation to assign Hall to
a lower level facility and that the FAA acted reasonably in
declining to reassign Hall after he failed to complete the
required training. According to the government,
EMP 1.14, ¶ 6(e) is inapplicable to an FAA employee at
the removal stage. The government also responds that
the record shows that Hall did not resign, but was termi-
nated from his position in Puerto Rico after “multiple
safety related performance deficiencies.” Resp’t’s Br. 11.
Finally, the government responds that the AJ correctly
found that Hall failed to prove any of his affirmative
defenses, and that the full Board properly adopted the
thorough findings of the AJ in its final order.
We agree with the government and the Board that
EMP 1.14, ¶ 6(e) does not apply in determining whether
the FAA must reassign Hall to a lower level facility when
6 HALL v. TRANSPORTATION
removing him from his position in Houston. EMP 1.14,
¶ 6(e) provides that:
Former Performance Verification failures at the
Academy may not reenter the ATCS occupation
above the FG-1 level or the current entry-level
rate; successful completion of the initial qualifica-
tions training course is mandatory. Former facili-
ty failures (at any phase of field training), if
rehired, must be assigned to a lower level or less
complex facility than the one in which previously
employed.
Resp’t’s App. at 79. That provision applies when the FAA
rehires a former employee, providing guidance to the
agency on the placement of the newly rehired employee,
not when, as in this case, the FAA removes an employee.
Contrary to Hall’s assertions, the AJ’s and the full
Board’s decisions were not based on whether he was
“rehired” or whether he was an “Academy” failure or a
“facility” failure. Pet’r’s Br. 3. Rather, the record shows
that the AJ correctly concluded that EMP 1.14, ¶ 6(e) did
not apply to Hall’s circumstances because his reemploy-
ment was not at issue, but rather his removal for failure
to complete the required training. Initial Decision After
Remand, ¶ 15. The full Board agreed with the AJ that
EMP 1.14, ¶ 6(e) is “inapplicable” in this case. Final
Order, at ¶ 7. We find no error in that conclusion.
We also reject Hall’s allegation of “harmful procedural
error” for his employment in Houston after his prior
unsuccessful employment at a lower level facility in
Puerto Rico. Pet’r’s Br. 3, 10–19. To the extent that Hall
asserts that under EMP 1.14, ¶ 6(e) the FAA should not
have hired him in Houston, we find that Hall failed to
establish how that alleged error prejudiced his rights in
the removal proceeding at issue here.
HALL v. TRANSPORTATION 7
Moreover, we agree with the government that the full
Board did not err in adopting the AJ’s decision without
specifically discussing all of Hall’s affirmative defenses.
The AJ’s decision analyzed and rejected each of Hall’s
affirmative defenses. In denying Hall’s petition for re-
view, the full Board correctly found that “[t]he record
evidence and the applicable law support the administra-
tive judge’s explained findings.” Final Order, ¶ 8. The
full Board thus had no obligation to “reinvent the wheel”
in a final decision because the AJ had properly and fully
addressed the issues in an initial decision. Gonzales v.
Def. Logistics Agency, 772 F.2d 887, 889 (Fed. Cir. 1985).
Because substantial evidence supports the Board’s af-
firmance of the FAA’s decision to remove Hall for failure
to successfully complete the NATTTP, and the Board did
not otherwise err, we affirm its decision.
CONCLUSION
We have considered Hall’s remaining arguments but
find them unpersuasive. For the foregoing reasons, the
decision of the Board is affirmed.
AFFIRMED
COSTS
No costs.