                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 10-1059


MARSHA TWYMAN,

                 Plaintiff – Appellant,

          v.

M. JOHN BERRY, Director, Office of Personnel Management;
UNITED STATES OFFICE OF PERSONNEL MANAGEMENT,

                 Defendants – Appellees.



                             No. 10-1064


PEDRO GARCIA,

                 Plaintiff – Appellant,

          v.

M. JOHN BERRY, Director, Office of Personnel Management;
UNITED STATES OFFICE OF PERSONNEL MANAGEMENT,

                 Defendants – Appellees.



Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk.     Robert G. Doumar, Senior
District Judge. (2:08-cv-00519-RGD-FBS; 2:09-cv-00262-RGD-FBS)


Submitted:   September 7, 2011       Decided:   September 27, 2011
Before TRAXLER,   Chief   Judge,   and   SHEDD   and   KEENAN,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


James H. Shoemaker, Jr., PATTEN, WORNOM, HATTEN & DIAMONSTEIN,
LC, Newport News, Virginia, for Appellants.     Neil MacBride,
United States Attorney, Alexandria, Virginia; Kent P. Porter,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                   2
PER CURIAM:

     Marsha Twyman and Pedro Garcia are former employees of the

United States Office of Personnel Management (“OPM”) who were

terminated from their employment for failing to meet certain

performance standards.   After unsuccessfully challenging their

terminations before a Merit Systems Protection Board (“Board”)

administrative judge, Twyman and Garcia filed these actions in

the district court seeking judicial review.   Finding no reason

to overturn the Board’s decision, the district court entered

summary judgment in OPM’s favor and dismissed the cases.      We

affirm. 1

     On appeal, Twyman and Garcia primarily argue that the Board

erred in upholding their terminations because OPM failed to meet

its burden of proving that the applicable performance standards


     1
       The administrative judge’s decision is the final decision
of the Board, and our jurisdiction over these appeals arises
under 28 U.S.C. § 1291.    In the proceedings below, Twyman and
Garcia also asserted discrimination claims, but they voluntarily
dismissed those claims before the district court granted summary
judgment. Our jurisdiction is not affected by the dismissal of
the discrimination claims. See Afifi v. U.S. Dept. of Interior,
924 F.2d 61 (4th Cir. 1991) (discussing the jurisdictional
issues arising in appeals from the Board and holding that in a
mixed case involving a good-faith discrimination claim and a
nondiscrimination claim, the district court does not lose
jurisdiction   over   the   nondiscrimination  claim  when   the
discrimination claim is disposed of); see also Porsche Cars
N.A., Inc. v. Porsche.net, 302 F.3d 248, 255 (4th Cir. 2002)
(noting that there is “no support for the . . . proposition that
the conditions that create subject-matter jurisdiction must
necessarily persist throughout the life of a case”).


                               3
were “valid.”            Under the controlling law, performance standards

are valid if, to the maximum extent feasible, they permit the

accurate appraisal of performance based on objective criteria,

and if they “are reasonable, realistic, attainable and clearly

stated in writing.”              Walker v. Dept. of Treas., 28 M.S.P.R. 227,

229    (1985).            Employees         cannot       be     terminated      based    on    a

performance         standard           that       requires       them      to    achieve       an

unreasonably high level of performance.                          Boyd v. Dept. of Navy,

88    M.S.P.R.      435,       439    (2001).          Stated    succinctly,      Twyman      and

Garcia    contend         that       the    performance         standards       were    invalid

because      they       were    unattainable           without       working    uncompensated

overtime hours.

       Our    appellate         review      is     limited      to    whether    the    Board’s

decision constitutes an abuse of discretion, is arbitrary and

capricious         or    otherwise          not    in    accordance        of   law,    or     is

unsupported         by    substantial             evidence.          See   Hooven-Lewis        v.

Caldera, 249 F.3d 259, 265-66 (4th Cir. 2001) (citing 5 U.S.C.

§ 7703(c)).         In this regard, we are not at liberty to substitute

our judgment for that of the Board, and our role “is only to

ascertain if the Board has met the minimum standards set forth

in the statute.”               U.S.P.S. v. Gregory, 534 U.S. 1, 7 (2001).

Twyman       and    Garcia           bear    the       burden    in     these    appeals       of

establishing error.                  Harris v. Dept. of Vet. Aff., 142 F.3d

1463, 1467 (Fed. Cir. 1998).

                                                   4
       The administrative judge thoroughly detailed the evidence

presented at the administrative hearing.                       Regarding the validity

of    the    performance         standards,         the    judge   found,       among    other

things, that “a number of agents demonstrated their ability to

perform      their       job   duties     within     the    regular      work    hours    and,

thus,       there    was       sufficient       evidence      to    conclude      that    the

standards could be met within the regular . . . work week.”

J.A. 750.       Applying the deferential standards applicable to our

review of this decision, and based on the evidence contained in

the   administrative            record,    we    hold      that    the   decision       cannot

reasonably be said to be arbitrary and capricious, an abuse of

discretion          or    otherwise       not       in    accordance      with     law,    or

unsupported by substantial evidence. 2

       Accordingly, we affirm the summary judgments.                            We dispense

with oral argument because the facts and legal contentions are

adequately      presented         in    the     materials      before     the     court    and

argument would not aid the decisional process.

                                                                                   AFFIRMED




       2
       Twyman and Garcia also contend that the decisions to
terminate them were arrived at through “harmful procedural
error.” We find no merit to this contention.


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