                     NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                     2007-3303


                                    BARRY ECK,

                                                       Petitioner,

                                          v.


                        UNITED STATES POSTAL SERVICE,

                                                       Respondent.


      Barry Eck, of Pottstown, Pennsylvania, pro se.

       William P. Rayel, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson,
Director, and Kenneth M. Dintzer, Assistant Director.


Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                       2007-3303


                                     BARRY ECK,

                                                      Petitioner,

                                           v.

                         UNITED STATES POSTAL SERVICE,

                                                      Respondent.




Petition for review of the Merit Systems Protection Board in PH0752060691-I-1.


                           ___________________________

                             DECIDED: January 14, 2008
                           ___________________________


Before GAJARSA, LINN, and MOORE, Circuit Judges.

PER CURIAM.

      Barry Eck (“Mr. Eck”) appeals the Merit Systems Protection Board’s (“Board”)

final order denying his petition for review regarding his removal based on a charge of

unacceptable conduct. Eck v. United States Postal Service, No. PH-0752-06-0691-I-1

(June 22, 2007). The Board determined that there was no new, previously unavailable,

evidence and that the administrative judge (“AJ”) made no error in law or regulation that
affects the outcome. Id. The AJ’s opinion therefore became final. For the reasons

stated herein, we affirm.

                                     BACKGROUND

       Mr. Eck was a City Letter Carrier for the United States Postal Service (“agency”).

On July 22, 2006, while delivering mail to residents of a condominium development, Mr.

Eck physically assaulted an off duty Rural Letter Carrier, Doug Ward (“Mr. Ward”). He

was later arrested and charged with aggravated assault. The agency found that Mr.

Eck engaged in “unacceptable conduct” resulting in “severe bodily injury to a fellow

employee” in violation of the agency’s Employee and Labor Relations Manual,

Administrative Support Manual, and Joint Statement on Violence in the Workplace. It

therefore issued a notice of proposed removal on August 2, 2006 and decision of

removal on August 23, 2006. Mr. Eck appealed to the Board’s Regional Office, arguing

that he neither initiated the altercation nor caused “severe bodily injury” to Mr. Ward,

and that his actions were in self defense.

       Although the facts are disputed, Mr. Eck testified to the following version of the

altercation at his hearing. First, he exited his postal vehicle and taunted Mr. Ward to

come closer. As Mr. Ward approached, Mr. Eck returned to his postal vehicle to secure

his mail and remove his sunglasses. When the two employees were standing in front of

each other, Mr. Eck pushed Mr. Ward. Then, according to Mr. Eck’s testimony, Mr.

Ward “threw the first punch.” However, in both his handwritten statement to the local

police and his interview with the postal inspector at the local police station on July 22,

2006, Mr. Eck made no such assertion. Rather, he did not recall who threw the first

punch. When questioned about this inconsistency at his hearing, Mr. Eck testified that




2007-3303                                    2
his earlier statements were made so as not to get Mr. Ward in trouble. The AJ found

this point “incredible.”

       The AJ also considered the testimony of an agency supervisor who spoke with

Mr. Eck at the scene. According to the agency supervisor, Mr. Eck stated that he first

yelled at Mr. Ward, then swung and hit him. The AJ further considered the written

statement of a resident of the condominium development (“[Mr. Eck] preceded [sic] to

begin a physical fight”). Ultimately, however, the AJ found that Mr. Eck’s own testimony

made him the initiator of the physical altercation, reasoning that “not only did [Mr. Eck]

begin the verbal interaction with [Mr. Ward] on July 22, 2006, but by his own admission,

[Mr. Eck] made the first physical contact with [Mr. Ward] by pushing him with his hands.”

The AJ also found that Mr. Eck failed to establish a claim of self defense.

       As to Mr. Eck’s argument that he did not cause “severe bodily injury,” the AJ

considered an incident investigation report issued by a police officer who was at the

scene. According to the report, Mr. Eck had only a “small cut” on his hand, but Mr.

Ward had a “bloody face which was red, bruised and swollen.” The report also stated

that Mr. Ward was airlifted to Lehigh Valley Medical Center “due to the extent of [his]

head injuries.” Based on the record, the AJ found sufficient evidence that Mr. Ward

suffered “severe bodily injury” even though his specific injuries were not established by

a preponderance of the evidence. The AJ therefore sustained the agency’s charge of

unacceptable conduct and its decision to remove Mr. Eck. The Board denied Mr. Eck’s

petition for review.

       Mr. Eck filed an appeal to this court. We have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(9).




2007-3303                                   3
                                      DISCUSSION

       The scope of our review in an appeal from a decision of the Board is limited.

Barrett v. Soc. Sec. Admin., 309 F.3d 781, 785 (Fed. Cir. 2002). We must affirm the

decision of the Board unless it is: 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); Barrett, 309 F.3d at 785.

       On appeal, Mr. Eck makes a variety of arguments that effectively challenge the

evidence. For example, he argues that some of the written statements are hearsay and

therefore should not have been admitted. He also argues that some of the witnesses

made dishonest statements or have unreliable character, and that the AJ ignored

particular testimony. Mr. Eck’s arguments fail for two reasons. First, it is well-settled

that hearsay evidence may be used in Board proceedings. Kewley v. Dep’t of Health &

Human Servs., 153 F.3d 1357, 1364 (Fed. Cir. 1998).            The admissibility of such

evidence falls within the AJ’s discretion. Id. Second, credibility determinations also fall

within the AJ’s discretion and are “virtually unreviewable” on appeal. Frey v. Dep’t of

Labor, 359 F.3d 1355, 1361 (Fed. Cir. 2004) (quoting King v. Dep’t of Health & Human

Servs., 133 F.3d 1450, 1453 (Fed. Cir. 1998)). Mr. Eck has not advanced sufficient

reasons to overturn either the AJ’s admissibility or credibility determinations. Further,

his argument is irrelevant because the AJ ultimately found that Mr. Eck’s own testimony

supported the agency’s charge of unacceptable conduct.

       Mr. Eck also argues that the AJ failed to consider factors that weigh against the

penalty of removal. To the contrary, the AJ specifically noted Mr. Eck’s 20-year service




2007-3303                                   4
record and letters of support from former co-workers, friends, and fellow church

members. While these factors weigh against removal, the AJ found that they did not

outweigh those factors in favor of removal.     For example, in the month before the

altercation, the agency advised Mr. Eck that he could lose his job if he were involved in

a confrontation with a co-worker. The AJ also considered Mr. Eck’s position as an

“ambassador” of the agency to the public and his role in initiating both the verbal and

physical exchanges. On appeal, this court will not overturn a choice of penalty within

the agency’s discretion “unless the severity of the agency’s action appears totally

unwarranted in light of all the factors.” Mings v. Dep’t of Justice, 813 F.2d 384, 390

(Fed. Cir. 1987).    In light of all the factors, Mr. Eck’s removal was not totally

unwarranted.

      Under these circumstances, we find that Mr. Eck failed to advance any argument

for reversing the decision of the Board.

                                     CONCLUSION

      We conclude that the decision of the Board was not arbitrary, capricious, or an

abuse of discretion. The decision of the Board is therefore affirmed.

      No costs.




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