Doyle v. Department of Army

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3326
MARK J. DOYLE,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
Christopher D. Vaughn, Melville Johnson, P.C., of Atlanta, Georgia, for petitioner.
Hillary A. Stern, Senior Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
her on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Todd M. Hughes, Deputy Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3326
MARK J. DOYLE,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
Petition for review of the Merit Systems Protection Board in PH0752060158-I-1.
___________________________
DECIDED: May 12, 2008
___________________________
Before LOURIE, BRYSON, and DYK, Circuit Judges.
PER CURIAM.
Petitioner Mark J. Doyle challenges the decision of the Merit Systems Protection
Board (“Board”) affirming a decision of the Department of the Army (“agency”) to
remove petitioner from his position. Because we conclude that petitioner’s challenges
to the credibility findings made by the Administrative Judge (“AJ”) and adopted by the
Board, and to the Board’s review of the agency’s selection of a penalty, are without
merit, we affirm the Board’s determination.
BACKGROUND
Petitioner was a civilian aircraft pilot employed by the agency at the
Communications-Electronics Research, Development and Engineering Center Flight
Activity in Lakehurst, New Jersey. Petitioner was assigned as a pilot in command on a
planned thirty-nine day mission, which began on June 13, 2005, to fly an aircraft from
Arizona to a military base in Apiay, Colombia and to conduct testing of a new foliage-
penetrating radar system. Brian E. Trainor, a major in the New Mexico Air National
Guard, was assigned as petitioner’s co-pilot for the flight to Colombia, and two other
personnel, Thomas L. Boutwell and Michael Morris, were also assigned to the mission.
En route to Apiay, the crew stopped overnight in New Orleans, Louisiana; stopped for
several nights at Boca Chica Airbase in Key West, Florida; landed to refuel in the
Cayman Islands; and stopped overnight in Barranquilla, Colombia, and briefly in Bogota,
Colombia. On approximately June 21, 2005, after flying the aircraft to Apiay as
planned, petitioner was relieved of his duties based on alleged misconduct.
On August 19, 2005, petitioner was issued a notice of proposed removal alleging
three charges: “1) discourtesy; 2) careless or reckless operation of an aircraft, contrary
to FAA regulation § 91.13, endangering personnel and property; and 3) failure to follow
orders where safety of persons or property is endangered.” Doyle v. Dep’t of the Army,
No. PH-0752-06-0158-I-1, slip op. at 2 (M.S.P.B. Feb. 15, 2007) (“Initial Decision”). The
first charge contained three specifications, alleging that petitioner was rude to Trainor
during a cab ride to the airport in New Orleans and alleging that on two occasions
petitioner was rude to Major Kodjo Knox-Limbacker, the overall commander of the
operation, during briefings in Apiay.
The second charge contained four specifications all relating to unsafe operation
of the aircraft and specifically alleging that petitioner: (1) failed to follow air traffic control
directions while departing from Lakefront Airport in New Orleans; (2) recklessly flew
through a storm on his approach to Boca Chica in Key West, Florida; (3) failed to follow
reasonable safety procedures on his approach to Barranquilla, Colombia; and (4) flew
2007-3326 2
directly toward dangerous mountain terrain in icing conditions after he should have
known to turn back, during a validation flight from Apiay, Colombia.
The third charge contained three specifications, alleging that petitioner: (1) failed
to obtain required permission to enter and leave the restricted military section of the
Barranquilla airport; (2) directly disobeyed air traffic control directions during an
approach to Apiay, Colombia; and (3) failed to follow instructions to turn over his
weapon for secure storage during his stay in Apiay, Colombia.
On November 18, 2005, the agency sustained the charges and determined that
removal was the appropriate penalty. Petitioner appealed his removal to the Board.
The AJ held a hearing and subsequently issued an initial decision sustaining all three
charges, but did not sustain specifications 1 and 2 of charge 2. The AJ sustained the
penalty of removal. The AJ found that Trainor’s testimony at the hearing was more
credible than petitioner’s version of the events, based on, among other things, Trainor’s
demeanor and the corroboration of many aspects of Trainor’s testimony by other
witnesses. Petitioner filed a petition for review with the full Board, and the Board denied
the petition for review.
Petitioner timely appealed, and we have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
Petitioner raises two arguments on appeal. First, petitioner argues that the AJ
erred by crediting Trainor’s testimony over petitioner’s own contradictory testimony. An
AJ’s credibility determinations, particularly when based in part on the demeanor of
witnesses, are “virtually unreviewable” by this court. Chambers v. Dep’t of Interior, 515
2007-3326 3
F.3d 1362, 1370 (Fed. Cir. 2008); Hambsch v. Dep’t of Treasury, 796 F.2d 430, 436
(Fed. Cir. 1986). Applying this standard, we will not overturn credibility determinations
unless the testimony credited by the AJ is “inherently improbable or discredited by
undisputed evidence or physical fact.” Hanratty v. Dep’t of Transp., 819 F.2d 286, 288
(Fed. Cir. 1987) (quoting Hagmeyer v. Dep’t of Treasury, 757 F.2d 1281, 1284 (Fed.
Cir. 1985)). Petitioner’s attacks on the AJ’s credibility findings in this case fall well short
of satisfying this standard.
Second, petitioner argues that the Board failed to consider possible
“undiagnosed medical issues,” Br. of Pet’r at 19, particularly a lack of “mental stability
and personality problems,” Reply Br. of Pet’r at 8, as a mitigating factor in determining
whether the penalty of removal was appropriate. Petitioner has not shown that he
argued before the Board that any past medical problems should mitigate the penalty.
Accordingly, petitioner has failed to show that this issue was preserved.
CONCLUSION
For the reasons set forth above, the determination of the Board is affirmed.
COSTS
No costs.
2007-3326 4