                       NOTE: This disposition is nonprecedential.


  United States Court of Appeals for the Federal Circuit


                                       2007-3072


                                  RONALD BREWER,

                                                             Petitioner,


                                            v.

                             DEPARTMENT OF DEFENSE,

                                                             Respondent.


      Neil C. Bonney, Bonney & Allenberg, PC, of Virginia Beach, Virginia, for petitioner.

      Ronald G. Morgan, 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
Todd M. Hughes, Assistant Director.

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                       NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                       2007-3072


                                   RONALD BREWER,


                                                            Petitioner,

                                           v.

                             DEPARTMENT OF DEFENSE,

                                                             Respondent.


                            __________________________

                              DECIDED: August 10, 2007
                            __________________________



Before LOURIE and LINN, Circuit Judges, and BUCKLO, District Judge. *

PER CURIAM.

       Ronald Brewer appeals the final decision of the Merit Systems Protection Board

(“Board”) affirming his removal from employment as the Recreation Program Manager

at the Department of Defense’s Joint Forces Staff College (“JFSC”), National Defense

University, Norfolk, Virginia.   Brewer v. Dep’t of Defense, No. DC-0752-06-0055-I-1

(M.S.P.B. Oct. 20, 2006). Because the Board’s decision is supported by substantial

evidence and is in accordance with the law, we affirm.

       *
             Honorable Elaine E. Bucklo, District Judge, United States District Court for
the Northern District of Illinois, sitting by designation.
                                  I.     BACKGROUND

       Mr. Brewer became the Recreational Programs Manager at JFSC in 2002. His

responsibilities included coordinating and directing the activities of the Morale, Welfare

and Recreation Department (“MWR”) and the Visitors Quarters (“VQ”) and he

supervised approximately 75 civilian and military employees. On August 30, 2005, the

Department of Defense (“the agency”) proposed removing Mr. Brewer from federal

service based on charges of failure to cooperate in an agency investigation, misuse of

government property, and conduct unbecoming a supervisor.

       Specifically, Mr. Brewer was charged with: (1) failure to cooperate in an agency

investigation (a) when he refused, on the advice of his attorney, to answer the

investigator’s questions, and (b) advising MWR employees not to implicate him in any

wrongdoing when they were interviewed by the investigator; (2) misuse of government

property (a) when he allegedly requested staff at the VQ to issue keys to the

Distinguished VQ to his subordinates, (b) failed to pay the full rental cost for his use of a

unit in the VQ for approximately six months, (c) failed to pay for several VQ units for

which he held keys during the period September 22, 2003, to March 27, 2004, (d)

improperly authorized a subordinate to spend MWR funds for exercise clothing, and (e)

on a regular basis consumed and allowed certain MWR employees to consume

alcoholic beverages and food free of charge at a small restaurant and pub on the JFSC

campus called Pub 1; (3) conduct unbecoming a supervisor for (a) allegedly regularly

consuming alcohol on duty with subordinates during working hours, regularly

encouraging subordinates to drink alcoholic beverages and eat food at Pub 1 without

paying while on and off duty, and (b) directing subordinates to encourage their



2007-3072                                    2
employees to use the Equal Employment Opportunity (“EEO”) process to file complaints

against the commanding officer of JFSC, Captain Jeanne McDonnell.

      Mr. Brewer submitted a written response to the agency denying the charges. On

October 12, 2005, Captain McDonnell—the deciding official—ordered Mr. Brewer’s

removal, which became effective October 21, 2005. In reaching her decision as to the

appropriate penalty, Captain McDonnell considered Mr. Brewer’s response, and

completed a “Disciplinary Penalty Worksheet for Managers.” Mr. Brewer appealed the

removal decision to the Board.

      An administrative judge (“AJ”) conducted a two-day hearing.        The evidence

against Mr. Brewer consisted primarily of witness testimony. In his defense, Mr. Brewer

explained that he refused to answer the investigator’s questions based on the initial

rights advisement warning him of his right to remain silent and that evidence obtained

from the interview could be used against him. Mr. Brewer also called witnesses to

dispute the agency witnesses’ accounts on the other charges.

      After considering the evidence and testimony, the AJ sustained all of the charges

and specifications, except specifications one and three of charge two (misuse of

government property when he allegedly requested staff at the VQ to issue keys to the

Distinguished VQ to his subordinates and failed to pay for several VQ units for which he

held keys during the period September 22, 2003, to March 27, 2004). Brewer v. Dep’t

of Defense, No. DC-0752-06-0055-I-1 (M.S.P.B. April 28, 2006). The full Board denied

Mr. Brewer’s petition for review, thereby making the AJ’s decision final. This appeal

followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                 II.    DISCUSSION


2007-3072                                  3
       This court may only set aside a Board decision if 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). Credibility determinations are 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)).

       As in Frey, Mr. Brewer has not advanced sufficient reason for overturning the

AJ’s credibility determinations. Id. The AJ properly considered the relevant testimony

and evidence before her, discussing it in detail and explaining her reasons for crediting

the testimony she believed. Moreover, substantial evidence supports the AJ’s findings.

Cumulatively, the testimony credited by the AJ with respect to all of the affirmed

charges and specifications is substantial. 1

       Mr. Brewer also claims the charges against him were vague, in violation of due

process.    As determined by the AJ, Mr. Brewer was sufficiently on notice of the

sustained charges and was able to defend himself.           The omission of some of the

pertinent dates in the charges is not improper per se. See Pope v. United States Postal

Serv., 114 F.3d 1144, 1148-49 (Fed. Cir. 1997) (denying challenge to sufficiency of



       1
              Mr. Brewer’s argument that his refusal to answer questions by the
investigator was protected by the Fifth Amendment’s privilege against self-incrimination,
and therefore charge one/specification one (failure to cooperate during an agency
investigation) cannot be sustained, is legally incorrect. When answering an agency’s
question, an employee may invoke his Fifth Amendment right to remain silent.
However, an agency may still take into consideration and make an adverse inference
from the failure of the employee to respond. See LaChance v. Erickson, 522 U.S. 262,
267-68 (1998). Mr. Brewer chose to remain silent and face dismissal; accordingly the
Board did not err in sustaining charge one/specification one.


2007-3072                                      4
notice where appellant claims he was not provided “dates, times, and places”). “Due

process requires that the charges in the notice be set forth ‘in sufficient detail to allow

the employee to make an informed reply.’” Id. at 1148 (quoting Brook v. Corrado, 999

F.2d 523, 526 (Fed. Cir. 1993)). In this case, Mr. Brewer responded to all the sustained

charges and was able to mount a defense. Mr. Brewer does not point to any specific

portion of the record that suggests otherwise or that the AJ erred in making such a

determination.

      Mr. Brewer argues his due process rights were also violated as a result of

Captain McDonnell’s bias against him and her attempts to influence some of the

witnesses against him. The AJ found the witnesses credible, however, and we see no

basis for departing from such credibility determinations.

       Mr. Brewer also takes issue with the AJ’s discovery and evidentiary decisions.

He claims these violated his due process rights. With respect to the discovery rulings,

the AJ found that the documents sought by Mr. Brewer (the precise contents of which

are not identified by the appellant) were provided during discovery before the AJ, but

Mr. Brewer complained this was too late because he had already been ordered

removed from his employment. This ruling does not fail to comport with due process

and is not an abuse of discretion. “The essential requirements of due process . . . are

notice and an opportunity to respond.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S.

532, 545-46 (1985) (full adversarial hearing is not required before termination of public

employment). Mr. Brewer was not denied notice or an opportunity to respond to the

sustained charges. He did, in fact, file a response and the documents at issue were

available for the hearing before the AJ. Furthermore, Mr. Brewer fails to identify how his




2007-3072                                   5
possession of such documents would have altered his response to the agency prior to

his removal.

      Similarly, Mr. Brewer’s claim that the AJ’s refusal to allow his counsel to ask

Captain McDonnell about her interpretation of the charges was a due process violation

is misguided.   An administrative judge has discretion to exclude witnesses when

testimony would be irrelevant. See Guise v. Dep’t of Justice, 330 F.3d 1376, 1379

(Fed. Cir. 2003) (citing Tiffany v. Dep’t of Navy, 795 F.2d 67, 70 (Fed. Cir. 1986)). The

AJ’s decision did not constitute an abuse of discretion because such information was

not relevant to sustaining the charges. And once again, Mr. Brewer fails to establish

that the absence of such information actually prejudiced his case.

      Finally, Mr. Brewer claims it was error to find that the agency’s choice of

penalty—removal—was reasonable. “The choice of penalty is committed to the sound

discretion of the employing agency and will not be overturned unless the agency’s

choice of penalty is wholly unwarranted in light of all the relevant factors.” Guise, 330

F.3d at 1382 (citing Lachance v. Devall, 178 F.3d 1246, 1251 (Fed. Cir. 1999)). The

relevant factors are enumerated in Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305-06

(1981).

      Here, Captain McDonnell completed a Douglas factors work sheet.               She

considered Mr. Brewer’s past disciplinary history, of which there was none, and the

seriousness of his misconduct. The AJ credited Captain McDonnell and the evidence of

the agency’s consideration of the factors bearing on the appropriate penalty, including

the nature of Mr. Brewer’s employment in a leadership position. We see no basis for




2007-3072                                  6
overturning the AJ’s determination, particularly in light of our limited scope of review on

this issue, and affirm.




2007-3072                                   7
