                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2009-3030

                                JERENO S. KINSLOW,

                                                             Petitioner,

                                           v.

                         DEPARTMENT OF THE TREASURY,

                                                             Respondent.


      JeReno S. Kinslow, of Braselton, Georgia, pro se.

       Jeffrey D. Klingman, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeanne E. Davidson, Director, and Deborah A. Bynum, Assistant Director.

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                     NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                     2009-3030

                               JERENO S. KINSLOW,

                                               Petitioner,

                                          v.

                        DEPARTMENT OF THE TREASURY,

                                               Respondent.


Petition for review of the Merit Systems Protection Board in consolidated case nos.
AT0752070609-I-2 and AT0752080092-I-1.

                          __________________________

                          DECIDED: March 10, 2009
                          __________________________


Before NEWMAN, RADER, and PROST, Circuit Judges.

PER CURIAM.

      Jereno Kinslow appeals the September 10, 2008 decision of the United States

Merit Systems Protection Board (“MSPB”) denying his petition for review and adopting

the May 14, 2008 decision of the administrative judge terminating his employment as a

Supervisory Tax Examining Technician with the United States Department of the

Treasury, Internal Revenue Service (“IRS”). We affirm the decision of the MSPB.

                                 I. BACKGROUND

      On February 1, 2007, police were called to the home of Mr. Kinslow, his wife

Levetta Butler Kinslow, and her child.   The responding officers found Mr. and Ms.
Kinslow with significant physical injuries. Based on their observations of Mr. and Ms.

Kinslow, the evidence visible at the scene, and the statements of Mr. and Ms. Kinslow,

the officers determined that Mr. Kinslow was the primary aggressor in an altercation

between the two. Mr. Kinslow was arrested for aggravated assault, battery, and cruelty

to children (related to the presence of Ms. Kinslow’s young child during the event). The

charges against Mr. Kinslow were later dropped at the request of Ms. Kinslow.

      The IRS suspended and subsequently terminated Mr. Kinslow’s employment.

The removal was based on the original allegations against Mr. Kinslow and the

conclusions of an IRS investigator who interviewed both Mr. and Ms. Kinslow about the

event. The administrative judge reviewing Mr. Kinslow’s termination found that (1) Mr.

Kinslow was involved in a violent altercation with his wife and coworker Levetta Butler

Kinslow, (2) Mr. Kinslow’s involvement in this altercation caused the IRS to lose faith in

his ability to reliably, ethically, and/or effectively serve as a manager in the tax

examining department, and (3) termination of his employment was reasonable.

      Following the administrative hearing, Mr. Kinslow acquired an affidavit from a

previously unknown eyewitness to the events and submitted the affidavit with an appeal

filed with the MSPB. The MSPB found that the affidavit did not constitute new evidence

and denied Mr. Kinslow’s petition for review, adopting the MSPB’s decision as final.

See 5 CFR § 1201.113. Mr. Kinslow now appeals to this court. We have jurisdiction

over the appeal pursuant to 5 U.S.C. § 7703.

                             II. PRELIMINARY MATTERS

      Mr. Kinslow has requested that we strike from the record the Government’s brief

due to late filing. Mr. Kinslow’s appeal was received by this court on October 27, 2008,




2009-3030                                   2
via transfer from filing with the MSPB office in Georgia. Mr. Kinslow failed to serve the

Government with the appeal. On December 17, 2008, this court granted Mr. Kinslow’s

in forma pauperis petition, entered his appeal, and served the Government with the

appeal on Mr. Kinslow’s behalf. The Government’s twenty-one day time for response

runs from the date of service on the Government (December 17, 2008) and tolled on

January 7, 2009. The Government’s brief was received by this court and served by mail

on Mr. Kinslow on January 7, 2009, and is therefore accepted as timely.

       The Government submits that Mr. Kinslow cannot challenge the administrative

court’s factual findings or rely on the record below because he failed to furnish a

transcript to this court. We disagree. This court timely received from Mr. Kinslow one

copy of the original monitored hearing compact disc from the administrative hearing

held April 1, 2008, before Administrative Judge Ramon V. Gomez of the Atlanta

Regional (Field) Office of the MSPB. We accept this recording as a substitute for a

written transcript, and consider its contents part of the record for review.

                                     III. DISCUSSION

       This court’s review of an appeal from a decision of the MSPB is limited by federal

statutory law. See 5 U.S.C. § 7703(c). This court may reverse a decision of the MSPB

only 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.” Id. An

agency decision is supported by “substantial evidence” if the record contains “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Jacobs v. Dep’t of Justice, 35 F.3d 1543, 1546 (Fed. Cir. 1994).




2009-3030                                    3
      Mr. Kinslow challenges the MSPB’s conclusion that Mr. Walker’s affidavit did not

constitute new and material evidence that was previously unavailable. Mr. Kinslow

argues that Mr. Walker’s affidavit was previously unavailable because Mr. Walker

resides in a different town than Mr. Kinslow. Mr. Walker and Mr. Kinslow did not know

of each other prior to May of 2008 and Mr. Walker did not know of Mr. Kinslow’s arrest

or its connection to the events that Mr. Walker witnessed. We agree that Mr. Walker’s

affidavit would not likely have been available to Mr. Kinslow, even with due diligence,

but for the chance meeting between them in May of 2008.

      Nonetheless, the MSPB’s determination that Mr. Walker’s affidavit does not

constitute new and material evidence is not reversible error. The fact that evidence was

not previously available does not make it new and material. The information contained

in Mr. Walker’s affidavit is nearly identical to the information offered by Mr. Kinslow

during his hearing testimony. Even if Mr. Walker’s affidavit were accepted as true and

corroborating evidence of Mr. Kinslow’s testimony, it would not preclude a conclusion

that Mr. Kinslow had a culpable role in a violent altercation between Mr. and Ms.

Kinslow, and that Mr. Kinslow engaged in conduct unbecoming of an IRS manager. It

was therefore not unreasonable for the MSPB to determine that Mr. Walker’s affidavit

did not present any new and material evidence that would require the MSPB to

reconsider the decision of the administrative judge.

      We have reviewed Mr. Walker’s affidavit, the transcript of the administrative

hearing, the briefs of the parties, and the documents in the record. We are presented

with several competing versions of the events that took place on February 1, 2007,

none of which are completely supported or completely precluded by the evidence in the




2009-3030                                   4
record. Common to all credible versions of the events is that Mr. and Ms. Kinslow had a

disagreement in the early morning prior to his arrest, and that some sort of violent

altercation took place between them, during which both parties sustained serious

injuries from a pantera claw.

      This court does not substitute its impression of the facts for that of the

administrative judge or the MSPB. We review the appeal only to determine whether,

based on the evidence in the record, a reasonable fact finder could have found that Mr.

Kinslow had a culpable role in the violent altercation, and engaged in conduct

unbecoming of an IRS employee. The preponderant evidence standard applicable to

an agency employment determination is a lower evidentiary standard than that required

in criminal proceedings.    See 5 U.S.C. § 7701(c)(1)(B).      A preponderance of the

evidence may be found by an agency even if there is not enough evidence to criminally

convict the accused of a crime arising out of the conduct for which his employment was

terminated.

      We find there is sufficient evidence in the record that the administrative judge

could have reasonably sustained the IRS’s termination of Mr. Kinslow’s employment.

The evidence shows that a violent altercation took place, and that Mr. Kinslow lied to

the police about the nature of the altercation during their investigation.    There is a

substantial nexus between the incident and Mr. Kinslow’s reliability, trustworthiness, and

ethical ability to perform his duties as a manager. The IRS responded harshly but not

unreasonably in terminating his employment. Further, for the reasons discussed above,

the MSPB did not commit reversible error in finding that Mr. Walker’s affidavit did not




2009-3030                                   5
constitute new and material evidence requiring the MSPB to reconsider the

administrative judge’s decision. The decision of the MSPB is affirmed.

                                       COSTS

      Each party shall bear its own costs.




2009-3030                                    6
