             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
                                      04-3198

                                  ALAN MADDOX,

                                               Petitioner,

                                          v.

                        DEPARTMENT OF TRANSPORTATION

                                               Respondent.

                          _______________________

                          DECIDED: November 9, 2004
                          _______________________

Before LOURIE, Circuit Judge, ARCHER, Senior Circuit Judge, and DYK, Circuit Judge.

PER CURIAM.

      Alan Maddox (“Maddox”) appeals the Merit Systems Protection Board’s (“Board”)

decision affirming the Department of Transportation’s removal of him for failing to

comply with drug testing procedures and for being absent without leave (“AWOL”) upon

two occasions. Maddox v. Dep’t of Transp., No. CH-0752-02-0670-I-1 (M.S.P.B. Apr.

30, 2003). We affirm.

      On May 1, 2002, at approximately 8:25 a.m., Maddox was informed that he was

to participate in a random drug test that morning.      In response, Maddox told his

supervisor (Gary Thomas) that he had “a doctor’s appointment” and that he “had to go.”

His supervisor replied that he was unaware of any request for leave and told Maddox

that he would arrange for Maddox’s immediate testing. Thomas then told Maddox that
he was going to make sure the testers were ready.            When Thomas returned,

approximately two minutes later,1 Maddox was no longer at his work station, and

Thomas did not see Maddox’s car in the company parking lot. Maddox returned later

that morning and, at some point later in the day, submitted a leave slip for the time he

was gone. This leave request, however, was not approved, because Maddox had not

followed agency leave procedures and did not have a valid excuse for this departure

from procedure. Also that day, Maddox requested leave from 1:30 to 4:30 p.m. – this

time following proper agency procedure. However, at 1:20 p.m., when Thomas went in

search of Maddox, Thomas could not find him. Accordingly, the two time periods that

Maddox was deemed AWOL are from 8:30 to 11:00 a.m. and 1:20 to 1:30 p.m. on

May 1, 2002.

      Following an exhaustive discussion of the factual background of this case and

the testimony before him, the AJ found

      the circumstances surrounding the appellant’s sudden departure from the
      agency’s facility on May 1, 2002, after receiving notice that he would be
      randomly drug tested, without obtaining specific leave approval from [his
      supervisor], and without an otherwise legitimate reason to leave the
      facility, establish, by preponderant evidence, that the appellant
      intentionally failed and refused to submit to the random drug test in
      violation of agency standards of conduct and discipline, and the conditions
      of his employment of which he was on ample personal notice.

Id. at 33. The AJ also found that the agency’s AWOL charges were supported and

sustained by a preponderance of the evidence. The AJ’s decision became final when

the full Board denied Maddox’s petition for review. We have jurisdiction pursuant to

5 U.S.C. § 7703.

      1
              Maddox claimed that it had to have been at least ten minutes before
Thomas returned due to a phone conversation Maddox recalled having; however, the
Administrative Judge (“AJ”) did not believe this testimony.


04-3198                                    2
       We must affirm a Board decision unless it is found 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. 5 U.S.C. § 7703(c). We will not overturn a decision of the Board

“if it is supported by ‘such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’” Brewer v. United States Postal Serv., 647 F.2d

1093, 1096 (Ct. Cl. 1981).

       On appeal, Maddox simply takes issue with the Board’s findings of fact,2 without

offering any explanation as to why the AJ’s decision was not supported by substantial

evidence. The AJ’s conclusions are fully supported by the evidence which is discussed

in detail in his forty page opinion.       The AJ made determinations concerning the

credibility of agency witnesses and Maddox’s lack of credibility. It is well settled that

judging the credibility of witnesses is the responsibility of the trier of fact and is virtually

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

Accordingly, we affirm the Board’s decision.




       2
              Maddox does not challenge the “efficiency of the service” and “penalty”
prongs of the AJ’s decision.


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