NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3357
DANIEL R. RICHARDS,
Petitioner,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION,
Respondent.
__________________________
DECIDED: March 9, 2005
__________________________
Before RADER, SCHALL, and BRYSON, Circuit Judges.
PER CURIAM.
DECISION
Daniel R. Richards petitions for review of the final decision of the Merit Systems
Protection Board (“Board”) that sustained the action of the Federal Deposit Insurance
Corporation (“agency”) removing him from his position as Counsel, CG-09-0905-15.
Richards v. Fed. Deposit Ins. Corp., No. DC-0752-03-0084-I-1 (M.S.P.B. Apr. 30, 2004)
(“Final Decision”). We affirm.
DISCUSSION
I.
The agency removed Mr. Richards from his position based upon three charges:
(1) unprofessional and/or inappropriate behavior; (2) submission of a false time and
attendance report; and (3) failure to follow a direct order. Mr. Richards appealed his
removal to the Board. Following a hearing, the administrative judge (“AJ”) to whom the
appeal was assigned issued an initial decision sustaining the removal. Richards v. Fed.
Deposit Ins. Corp., No. DC-0752-03-0084-I-1 (M.S.P.B. Feb. 11, 2003) (“Initial
Decision”). The Initial Decision became the final decision of the Board on April 30,
2004, after the Board denied Mr. Richards’ petition for review for failure to meet the
criteria for review set forth at 5 C.F.R. § 1201.115(d). See Final Decision. This appeal
followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II.
Our scope of review in an appeal from a decision of the Board is limited.
Specifically, we must affirm the Board’s decision unless we find it be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; obtained
without procedures required by law, rule, or regulation having been followed; or
unsupported by substantial evidence. 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health &
Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998). Mr. Richards raises several
issues on appeal. We address them in turn.
Mr. Richards argues first that the decision of the Board is not supported by
substantial evidence. Substantial evidence is “such relevant evidence as might be
accepted by a reasonable mind as adequate to support the conclusion reached.” Hayes
04-3357 2
v. Dep’t of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984). The evidence before the
Board included voicemail and email messages and various personnel records. In
addition, the Board had before it the testimony of David Wall and Henry Griffin, Mr.
Richards’ first and second level supervisors, respectively. The AJ credited the
testimony of Mr. Wall and Mr. Griffin over that of Mr. Richards. An AJ’s credibility
determinations are virtually unreviewable, see Frey v. Dep’t of Labor, 359 F.3d 1355,
1361 (Fed. Cir. 2004), and we see no reason to disturb the credibility determinations
made by the AJ in this case. In view of the physical evidence and the testimony of
Messrs. Wall and Griffin, we reject Mr. Richards’ contention that the decision of the
Board is not supported by substantial evidence.
Mr. Richards’ main argument on appeal is that the AJ was biased against him
and that he was deprived of due process because of the way in which the AJ conducted
the hearing proceedings. Mr. Richards bases his claim that the AJ was biased against
him on rulings and statements made by the AJ during the course of the proceedings.
Such matters do not normally provide grounds for a claim of bias, see Liteky v. United
States, 510 U.S. 540, 554-55 (1994), and the record in this case confirms that the AJ’s
remarks and rulings, taken in context, do not reflect and impermissible personal animus
against Mr. Richards. With respect to his claim that the AJ denied him due process by
conducting the hearing in a single day, there is no showing that the AJ’s decision to
hear evidence between 9:50 am and 7:16 pm on a single day deprived Mr. Richards of
his right to a fair proceeding. He was allowed to testify for more than three hours, at the
conclusion of which he stated that he had no additional evidence to present regarding
the charges against him. Although he wished to testify about matters occurring more
04-3357 3
than a decade prior to the charged misconduct, the AJ legitimately excluded that
evidence as irrelevant. The AJ also legitimately barred Mr. Richards from introducing
evidence supporting his claim that his removal constituted an unlawful reduction in force
and was the product of a prohibited personnel practice by his supervisors. Mr.
Richards’ counsel had not raised those defenses at the prehearing conference and the
AJ therefore properly held that Mr. Richards could not raise them for the first time at the
hearing. Finally, Mr. Richards complains that he was unable to present two witnesses
that he wished to call to his defense. Those witnesses were not present at the hearing,
and the AJ reasonably ruled that because Mr. Richards had not arranged for them to be
present, despite ample notice of the date of the hearing, those witnesses would not be
heard.
Finally, Mr. Richards complains that he was denied due process on account of an
inaccurate hearing transcript, and that the Board erred in not considering certain
evidence he presented in support of his petition for review. Neither contention has
merit. Except for making a general allegation, Mr. Richards has failed to identify
inaccuracies in the hearing transcript. As far as the second point is concerned, the
Board did not err in failing to consider the proffered evidence; it was neither new nor
material. See 5 C.F.R. § 1201.115(d)(1).
For the foregoing reasons, the final decision of the Board sustaining Mr.
Richards’ removal is affirmed.
04-3357 4