                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                      2008-3228

                           VALDEMAR C. JARAMILLO, JR.,

                                                            Petitioner,

                                           v.

                         DEPARTMENT OF THE AIR FORCE,

                                                            Respondent.


      Valdemar C. Jaramillo, Jr., of San Antonio, Texas, pro se.

      David A. Harrington, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC. With him on the brief were
Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson, Director, and
Bryant G. Snee, Deputy Director.

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                      NOTE: This disposition is nonprecedential.


    United States Court of Appeals for the Federal Circuit

                                       2008-3228


                           VALDEMAR C. JARAMILLO, JR.,

                                                              Petitioner,

                                            v.

                         DEPARTMENT OF THE AIR FORCE,

                                                              Respondent.


           Petition for Review of the Merit Systems Protection Board in
           DA-0752-05-0280-I-1.

                            __________________________

                             DECIDED: November 6, 2008
                            __________________________


Before MICHEL, Chief Judge, LINN, Circuit Judge, and WARE, District Judge. *

PER CURIAM.

       Petitioner Valdemar C. Jaramillo, Jr., appeals from a final decision of the Merit

Systems Protection Board (“Board”), affirming his removal from employment as a

training technician for the Department of the Air Force (“the Air Force”). Jaramillo v.

Dep’t of the Air Force, No. DA-0752-05-0280-B-1 (Oct. 24, 2007).            Because Mr.

Jaramillo has not shown reversible error on the part of the Board, we affirm.



*
      Honorable James Ware, District Judge, United States District Court for the
Northern District of California, sitting by designation.
                                    BACKGROUND

A.     Mr. Jaramillo’s Employment with the Air Force

       Since July 15, 2002, Mr. Jaramillo was employed at the Air Force’s Defense

Language Institute (“DLI”) at Lackland Air Force Base, Texas. In January 2005, he was

a training technician at DLI, where international students are taught English. According

to Lieutenant Colonel (Retired) Susan Moreland, former Dean of Academics, DLI is a

“gateway to America” and is often visited by foreign ambassadors and dignitaries.

       During the afternoon of January 19, 2005, Mr. Jaramillo, off-duty, was driving his

pick-up truck when he became involved in an altercation which ultimately lead to his

arrest and removal from his position at DLI. Mr. Jaramillo was stopped at a traffic light

when something hit him on the left side of his face. Looking out his window, he saw

several high school students from John Jay High School in a school bus laughing at

him. Presumably, a student on the bus had thrown a pen cap at Mr. Jaramillo, striking

him on the face.     Understandably upset and while still in his truck, Mr. Jaramillo

engaged in a verbal exchange with the students, in which he allegedly cursed at the

students and the students replied in kind. He attempted to get the attention of the driver

but was not satisfied.

       Mr. Jaramillo followed and caught up to the bus when it stopped to let off some

students. At that point, Mr. Jaramillo exited his vehicle and entered the school bus.

       Upon entering the school bus, he began asking for the student who threw the

pen cap at him. The bus driver informed Mr. Jaramillo that he was not allowed on the

bus. At about the same time, one student confronted Mr. Jaramillo, both acknowledging



2008-3228                                   2
that he threw the object and challenging Mr. Jaramillo.       After some back-and-forth

between Mr. Jaramillo and the students, Mr. Jaramillo exited the bus, saying that he had

“something” for them in his truck. Mr. Jaramillo returned to his truck and retrieved and

displayed a BB-gun that apparently resembled a shotgun.

       According to Mr. Jaramillo, he never used the gun to threaten the students but

simply placed the BB-gun on the floor in his truck for safety reasons. The students

asserted that he pumped the gun, as one would do with a pump-action shotgun or rifle.

Mr. Jaramillo then drove away in his truck.

       The police were called to the scene, where the bus remained.            The police

eventually took statements from the bus driver and several students. Mr. Jaramillo,

meanwhile, had gone to his girlfriend’s house. After talking with his girlfriend, he called

the police to report the incident. After some further investigation, a warrant was issued,

and the police arrested Mr. Jaramillo on January 24, 2005, for aggravated assault with a

deadly weapon. He later entered a nolo contendere plea and was placed on probation

for two years.

       On February 3, the Air Force proposed to remove Mr. Jaramillo from his position

at DLI for egregious off-duty misconduct. The removal action was based on the above-

recounted incident with the high school students. On February 25, 2005, the Air Force

sustained the charge against Mr. Jaramillo and removed him from his position.

       B.     Mr. Jaramillo’s Appeal to the Board

       Mr. Jaramillo appealed to the Board. After several delays, Administrative Judge

Robert A. Ringler, presiding over the case for the Board, heard testimony from several

witnesses, including Mr. Jaramillo and the police officer who investigated the incident.



2008-3228                                     3
AJ Ringler found, by a preponderance of the evidence, that Mr. Jaramillo had committed

felony assault with a deadly weapon. AJ Ringler discounted certain aspects of Mr.

Jaramillo’s testimony due to his lack of credibility.

       AJ Ringler then considered whether Mr. Jarmillo’s removal was reasonable,

pursuant to Douglas v. Veterans Administration, 5 M.S.P.R. 280, 302 (1981).             AJ

Ringler listened to testimony from Lieutenant Colonel (Retired) Susan Moreland, the

official who decided Mr. Jaramillo’s removal.           AJ Ringler also weighed mitigating

evidence from Mr. Jaramillo, which included his strong past work performance and

testimony from colleagues.      In his Initial Decision of October 24, 2007, AJ Ringler

concluded that removal was reasonable, in light of all the circumstances, including Mr.

Jaramillo’s lack of remorse and his poor potential for rehabilitation.

       Mr. Jaramillo filed a petition for review by the full Board. The petition was denied

on March 6, 2008. Mr. Jaramillo appealed to our Court. We have jurisdiction over the

Board’s decision under 28 U.S.C. § 1295(a)(9).

                                       DISCUSSION

A.     Applicable Legal Standards

       Our authority is limited by statute. See 5 U.S.C. § 7703(c). “We must affirm the

Board’s decision unless we find it to be arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law; obtained without procedures required by law, rule,

or regulation having been followed; or unsupported by substantial evidence.” Campion

v. Merit Sys. Prot. Bd., 326 F.3d 1210, 1212 (Fed. Cir. 2003). Therefore, we cannot

freely review the factual findings of the Board but only determine “whether the

administrative determination is supported by substantial evidence in the record as a



2008-3228                                     4
whole.” Kimm v. Dep’t of the Treasury, 61 F.3d 888, 891 (Fed. Cir. 1995). Additionally,

we give special deference to the credibility determinations made by the presiding

administrative judge. See Wright v. U.S. Postal Serv., 183 F.3d 1328, 1334 (Fed. Cir.

1999).

         We review the reasonableness of the penalty imposed by the Air Force for an

abuse of discretion. Dominguez v. Dep’t of the Air Force, 803 F.2d 680, 684 (Fed. Cir.

1986). We do not “disturb a penalty unless it is unauthorized or exceeds the bounds of

reasonableness because it is so harsh and unconscionably disproportionate to the

offense that it amounts to an abuse of discretion.” Id.

B.       Mr. Jaramillo’s Contentions on Appeal

         In his informal brief, Mr. Jaramillo contends that the Board erred in numerous

ways. For example, he asserts that “no evidence to support [the] charges [against him]

was found or produced.” He also argues that false evidence was considered.

         We cannot agree. AJ Ringler heard evidence from the investigating officer of the

incident. The officer’s testimony was based on the statements from the bus driver and

several students. The statements of those witnesses are remarkably consistent, each

describing a situation in which a perturbed Mr. Jaramillo entered the school bus without

authorization, confronted students about the offending missile, and claimed that he had

“something” for the students in his truck. Two students recounted seeing the gun, which

they thought, at the time, was a rifle or shotgun. The investigating police officer testified

that the BB-gun closely resembled a shotgun. The officer opined that Mr. Jaramillo had

committed aggravated assault. Thus, we conclude that substantial evidence supports

the Board’s finding that Mr. Jaramillo committed egregious off-duty conduct.



2008-3228                                    5
      Mr. Jaramillo also appears to challenge the credibility determination made by AJ

Ringler. Given the conflicting testimony of the officer and Mr. Jaramillo, AJ Ringler had

to make a credibility determination. We give special deference to the AJ’s analysis of

credibility. See Hambsch v. Dep’t of the Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986)

(characterizing credibility determinations as “virtually unreviewable”).   “[This] simply

recognizes the reality that the conduct of a witness while testifying may fairly detract

from the written word.” Jackson v. Veterans Admin., 768 F.2d 1325, 1331 (Fed. Cir.

1985). AJ Ringler was in a much better position than we are today to assess who was

more believable. AJ Ringler properly considered the relevant evidence in assessing the

credibility of each witness. While individual pieces of evidence relating to credibility

might be viewed differently, our limited role is not to reweigh the facts but to assess

whether the Board’s credibility determination as a whole is supported by substantial

evidence. And we conclude that it is.

      Mr. Jaramillo also disputes the reasonableness of the penalty. First, however,

Mr. Jaramillo does not dispute that removal is an authorized penalty.       Second, the

Board considered the relevant Douglas factors, including the mitigating evidence

submitted by Mr. Jaramillo. Although the incident occurred when Mr. Jaramillo was off-

duty and did not directly involve any other personnel of DLI, the Board sufficiently

supported its finding that Mr. Jaramillo’s removal would promote the efficiency of the

service. Lt. Col. (Ret.) Moreland testified that Mr. Jaramillo failed to show any remorse

shortly after the incident.   Furthermore, the Board found that, given the politically-

sensitive image of DLI and the importance of good will in DLI’s international community,

removal was at least a reasonable penalty, if not the most or only reasonable one. In



2008-3228                                   6
the end, we agree with the Board that removal was not an unreasonable penalty for the

proven conduct. See Hayes v. Dep’t of the Navy, 727 F.2d 1535, 1539-40 (Fed. Cir.

1983) (affirming removal as an appropriate penalty in instance of an off-duty assault and

battery of a child).

                                     CONCLUSION

       For the foregoing reasons, we affirm the decision of the Board.

                                        COSTS

       Each party shall bear its own costs.




2008-3228                                     7
