John O. Ess v. Department of the Navy

852 F.2d 1294

Unpublished Disposition NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed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issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. John O. ESS, Petitioner, v. DEPARTMENT OF the NAVY, Respondent.

No. 88-3026.

United States Court of Appeals, Federal Circuit.

June 28, 1988.

Before ARCHER, MAYER and MICHEL, Circuit Judges.

PER CURIAM.

1

The decision of the Merit Systems Protection Board (board), Docket No. DC07528710173, sustaining the thirty-day suspension imposed on petitioner for dereliction of duty, unprofessional conduct, refusal to carry out a direct order, disrespectful conduct and failure to follow instructions, is affirmed.

2

In a comprehensive analysis of the testimony and other evidence, the administrative judge (AJ) determined in her initial decision, which became the final decision of the board, see 5 C.F.R. Sec. 1201.113(b), that five of the seven specifications against petitioner were established by a preponderance of the evidence and that this evidence required that the five charges be sustained. Further, the AJ found that the penalty was reasonable and promoted the efficiency of the service, and that it was arrived at after consideration of the appropriate Douglas factors.

3

Applying our standard of review as set forth in 5 U.S.C. Sec. 7703 (c) (1982), the board's decision is not 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. Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984). Accordingly, we affirm on the basis of the initial decision of the AJ dated April 28, 1987.