Notice: Federal Circuit Local Rule 47.8(B) States that Opinions and Orders Which Are Designated as Not Citable as Precedent Shall Not Be Employed or Cited as Precedent. this Does Not Preclude Assertion of Issues of Claim Preclusion, Issue Preclusion, Judicial Estoppel, Law of the Case or the Like Based on a Decision of the Court Rendered in a Nonprecedential Opinion or Order. Elton L. English, Petitioner, v. Department of the Navy, Respondent., 945 F.2d 417 (Fed. Cir. 1991)

Text

---

Before PLAGER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and RADER, Circuit Judge.

DECISION

PER CURIAM.

Elton L. English was removed by the Department of the Navy (Navy) from his position as Painting Worker, based on charges of the use and sale of drugs. English appealed to the Merit Systems Protection Board (MSPB or Board), which affirmed the Navy's action. English brought his appeal to this court. We affirm.

OPINION

The MSPB Administrative Judge (AJ), whose initial decision affirming removal became the final decision of the Board, reviewed the considerations prerequisite to upholding an agency action such as the Navy's removal of English, including 1) proof by preponderant evidence that the accused conduct occurred, 5 U.S.C. 7701(c)(1)(B) (1988); 2) existence of a nexus between the conduct and the efficiency of the agency, 5 U.S.C. 7513(a); and 3) reasonableness of the penalty. The AJ correctly noted that affirmative defenses need be proven by preponderant evidence by the appellant, 5 U.S.C. 7701(c)(2), 5 C.F.R. § 1201.56(a)(2) (1991). The AJ also discussed the factors leading to the weight she gave to the hearsay evidence, which consisted mainly of affidavit evidence from deponents who were not available to testify before the AJ in person.

The legal standard by which the Federal Circuit reviews decisions of the MSPB is that the decision must be affirmed unless it is found to be:

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.

See 5 U.S.C. 7703. In light of this standard of review, we have no doubt that the thorough and thoughtful decision of the MSPB should be and is hereby affirmed.

---