             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

                                       06-3001


                                 KEITH A. FULTON,

                                               Petitioner,

                                          v.

                           DEPARTMENT OF THE ARMY,

                                               Respondent.

                          ____________________________

                              DECIDED: April 6, 2006
                          ____________________________


Before MAYER, LOURIE, and BRYSON, Circuit Judges.

PER CURIAM.

                                      DECISION

      Keith Fulton (“Fulton”) appeals from the final decision of the Merit Systems

Protection Board (the “Board”) sustaining his dismissal from the Department of the Army

(the “Agency”). Fulton v. Dep’t of the Army, No. DC-0752-04-0590-I-1 (M.S.P.B. Aug. 3,

2005). We affirm.

                                   BACKGROUND

      Fulton was formerly a Paramedic at the Department of Emergency Medicine

Ambulance Service, Womack Army Medical Center, Fort Bragg, North Carolina. Fulton

v. Dep’t of the Army, No. DC-0752-04-0590-I-1, slip. op. at 1 (M.S.P.B. Oct. 6, 2004)
(“Initial Decision”).   Effective May 28, 2004, the Agency removed Fulton from his

position based on his alleged failure to follow written/established procedures when

safety to the patient was endangered and his alleged falsification of a Fort Bragg EMS

Prehospital Care Report (“Prehospital Report”). Id., slip op. at 2. Both charges of

misconduct arose from Fulton’s behavior on April 8, 2004, in responding to an

emergency call concerning an 18-year-old woman (the “patient”) having diabetic

symptoms. Id. Fulton, who was accompanied during the emergency call by Samuel

Johnston (“Johnston”), an emergency medical technician (“EMT”), allegedly used the

same intravenous (“I.V.”) catheter twice while attempting to start an I.V. line (“double

stick”) on the patient, and gave the patient an albuterol nebulizer treatment when it was

not needed and was counter-indicated by the patient’s symptoms.         Id., slip op. at 2-3.

Albuterol is an anti-asthmatic drug; however, it increases anxiety and is counter-

indicated when patients are suffering from anxiety, as this patient was. Id., slip op. at 3-

4. After Fulton and Johnston transported the patient to an off-base hospital, the patient

told Johnston that Fulton reported on a Prehospital Report that he had taken her vital

signs even though she did not believe that he had done so. Id., slip op. at 8.

         Fulton’s supervisor, Jean-Luis Gomes (“Gomes”), notified Fulton on April 19,

2004, that he was proposing his removal for failure to follow written/established

procedures when safety to the patient is endangered and falsification of the Prehospital

Report. Id., slip op. at 2. On May 21, 2004, Dr. Robert Desverreaux (“Desverreaux”),

the deciding official, determined that both charges were supported by the evidence and

warranted Fulton’s removal effective May 28, 2004. Id. Fulton timely appealed to the

Board.




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       The Administrative Judge (“AJ”) sustained all of the Agency’s charges and

concluded that the penalty of removal was reasonable. Id., slip op. at 1. First, the AJ

held that the Agency proved by preponderant evidence its charge of failure to follow

written/established procedures when safety to the patient is endangered. Id., slip op. at

7. As an initial matter, the AJ stated that there was no dispute that Fulton administered

albuterol as charged because Fulton admitted that he gave the patient albuterol for

“anxiety,” and that “he did not take her vital signs before administering the albuterol.”

Id., slip op. at 5-6. The AJ also held that the Agency proved Fulton’s double-sticking of

the patient based on the eyewitness testimony of Johnston. Id., slip op. at 6.

       The AJ then found that Fulton’s actions endangered the patient, crediting the

testimony of Richard Clark (“Clark”), an EMT and training officer for the Agency,

Desverreaux, a medical doctor and head of the Agency’s emergency medicine

department, and Johnston that double-sticking increases the risk of infection and injury

to the patient, and that albuterol should not be used to treat a patient already suffering

from anxiety.   Id., slip op. at 5-6.   The AJ also determined that the Agency had

written/established procedures dealing with the treatment of anxiety and dealing with

the appropriate I.V. administration, and that Fulton was on notice of those procedures.

Id.   The AJ therefore sustained the Agency’s charge of failure to follow

written/established procedures when safety to the patient is endangered.

       Second, the AJ held that the Agency proved by preponderant evidence its charge

of falsification of the Prehospital Report. Id., slip op. at 9. The AJ determined that

Fulton did not take any vital signs from the patient and that Fulton admitted to falsifying

the Prehospital Report based on the testimony of Johnston and Gomes. Id., slip op. at




06-3001                                 -3-
8. The AJ also found that Fulton intended to falsify the form. Id. Third, the AJ held that

Fulton did not prove by preponderant evidence his affirmative defense of retaliation for

engaging in union activities and for accusing his supervisor of not properly filling out

workers compensation forms for him. Id., slip op. at 10. Finally, the AJ upheld the

penalty of removal because it was reasonable in light of the sustained charges and

promoted the efficiency of the service. Id., slip op. at 12. The AJ concluded that the

Agency showed “that it gave adequate consideration to the Douglas factors and

thereafter properly exercised its managerial discretion in selecting the penalty of

removal.” Id.

      Fulton sought review by the full Board, the Board denied his petition, and the

AJ’s decision became the final decision of the Board. See 5 C.F.R. § 1201.113(b).

Fulton timely appealed to this court, and we have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(9).

                                     DISCUSSION

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

must affirm the Board’s decision unless it was “(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) (2000); see Briggs v. Merit Sys. Prot. Bd.,

331 F.3d 1307, 1311 (Fed. Cir. 2003).

      On appeal, Fulton makes three arguments. First, he contends that the Board

applied the wrong law because his case should have been subject to “peer review”

under Army Regulation (“AR”) 40-68 rather than consideration by the Board. He also




06-3001                                 -4-
cites other allegedly controlling regulations and publications that should have changed

the result of his hearing. Second, Fulton contends that the Board failed to take into

account relevant facts and failed to consider important grounds for relief. According to

Fulton, the Board failed to review materials submitted by his representative. He also

asserts that he sought and received permission from a doctor at Fort Bragg to

administer the albuterol and that the Fort Bragg Medical Center manuals do not

proscribe his supposed misconduct, i.e., double-sticking and the administration of

albuterol for anxiety. In addition, Fulton challenges the credibility and character of the

witnesses who testified against him, alleging that Johnston committed “medical

malpractice,” Clark purposely misled the Board as to Agency protocol, Gomes lied to

the Board and committed other illegal acts not related to this action, and Desverreaux

was a “YES Man” whose application of the Douglas factors was “lame.” Fulton further

asserts that the Board should have allowed discovery and permitted testimony by a

Sergeant Keegan. Finally, Fulton argues that the government attorney violated Agency

rules and lied to the Board, and that the Board showed bias against him in ruling in

favor of the Agency.

      The government first responds that the peer review process is irrelevant to

Fulton’s appeal because AR 40-68 refers to actions to limit a health care provider’s

clinical privileges or licenses and that the Army Regulations cited by Fulton are

irrelevant. Second, the government argues that the silence of the Fort Bragg Medical

Center manuals as to double-sticking and albuterol administration does not exculpate

him because other rules proscribe his conduct.       The government also asserts that

Fulton’s allegation that he sought and received permission from a doctor at Fort Bragg




06-3001                                 -5-
to administer the albuterol is unsubstantiated in the record. In addition, the government

contends that Fulton’s allegations as to witness testimony are irrelevant, fail to

overcome the AJ’s credibility determinations, are not supported by the record, and are

not material to the Board’s decision to sustain his removal. Further, the government

asserts that the AJ was within her discretion in denying Fulton’s request for discovery as

untimely and in not permitting Sergeant Keegan to testify.      Finally, the government

argues that Fulton’s allegations of bias of the AJ and alleged misconduct by the

government attorney are without merit and unsupported by the evidence.

       We agree with the government that the Board did not apply the wrong law. AR

40-68 prescribes policies, procedures, and responsibilities for the administration of the

“Clinical Quality Management Program.” Section 6-1 of AR 40-68 describes a “peer

review” process that applies in actions to limit a health care provider’s privileges or

licenses.   Here, the Army removed Fulton for misconduct, rather than limiting his

privileges or taking any licensing actions against him. Thus, his case was properly

considered by the Board. Moreover, none of the other regulations or publications cited

by Fulton are relevant to this case.

       We also agree with the government that the Board did not fail to take into

account relevant facts or fail to consider important grounds for relief. Even assuming

arguendo that the Fort Bragg Medical Center manuals were silent on Fulton’s

misconduct, the Board properly relied on testimony and other documents proscribing

double-sticking and administration of albuterol to patients suffering anxiety. Moreover,

Fulton’s allegation that he sought and received permission from a doctor at Fort Bragg

to administer albuterol is not substantiated in the record.




06-3001                                  -6-
      Similarly, there is no basis for Fulton’s claim that the Board improperly

considered the testimony of Johnston, Clark, Gomes, and Desverraux.              Fulton’s

allegations that Johnston committed “medical malpractice” do not impair Johnston’s

ability to testify truthfully as to whether Fulton administered albuterol, was responsible

for double-sticking the patient, and fabricated vital signs in the Prehospital Report.

Fulton’s attacks on Clark also do not overcome the AJ’s credibility determination that

Fulton’s use of albuterol and double-sticking the patient were contrary to training. In

addition, Fulton’s allegations that Gomes was biased are not supported by the record

and, given the limited testimony of Gomes, were not relevant to the Board’s decision to

sustain Fulton’s removal. Finally, Fulton’s challenges to Desverraux’s testimony are

overcome by the AJ’s findings that Desverraux’s testimony on his evaluation of the

Douglas factors was “credible and thorough.”

      Further, we reject Fulton’s argument that the Board failed to comply with its rules.

Fulton has presented no evidence that the testimony of Sergeant Keegan would have

“made light” of Clark’s testimony regarding the I.V. policy. We thus conclude that the AJ

was within her discretion to exclude testimony from Sergeant Keegan. We also discern

no abuse of discretion in the AJ’s decision to deny Fulton’s motion to compel discovery

as untimely.

      Finally, we agree with the government that Fulton’s allegations of bias of the AJ

and alleged misconduct by the government attorney are unsupported by the evidence.

We have considered Fulton’s remaining arguments and find them unpersuasive. We

therefore affirm the Board’s decision.




06-3001                                  -7-
