                 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

                                       05-3320

                                DESIREE M. BROWN,

                                                     Petitioner,

                                          v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                     Respondent.

                          __________________________

                          DECIDED: January 12, 2006
                          __________________________

Before MICHEL, Chief Judge, GAJARSA, and LINN, Circuit Judges.

PER CURIAM.

      Desiree M. Brown (“Brown”) appeals from the final order of the Merit Systems

Protection Board (“Board”) affirming the removal decision of the Department of Veterans

Affairs (“Agency”). See Brown v. Dep’t of Veterans Affairs, No. SF-0752-04-0577-I-1

(M.S.P.B. July 25, 2005) (“Final Order”); Brown v. Dep’t of Veterans Affairs, No. SF-

0752-04-0577-I-1 (M.S.P.B. Oct. 20, 2004) (“Initial Decision”). Because the Board’s

decision was not 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, we affirm.
                                   I. BACKGROUND

       This appeal arises from a series of events beginning in December 2003 that

resulted in a notice of proposed removal dated March 2, 2004. The notice of proposed

removal contained four charges. Charge I was that Brown failed to follow instructions

and displayed insubordinate behavior towards her supervisor; five specifications

supported Charge I, all relating to Brown’s failure to retrieve voicemails and attend

meetings and training sessions as instructed. Charge II was that Brown delayed in

performing or was unwilling to perform assigned tasks; three specifications supported

Charge II, relating to Brown’s stated unwillingness to retrieve voicemails and Brown’s

reluctance to attend a training session. Charge III was that Brown misrepresented facts

on a government application in order to obtain employment; one specification supported

Charge III, relating to Brown’s answering “No” to Question 11 on Declaration for Federal

Employment (“Declaration”).      Charge IV was also that Brown misrepresented

employment facts on a government application; one specification supported Charge IV,

relating to Brown’s indication of Iverson as Brown’s supervisor at the Department of

Defense (“DoD”) on Optional Application for Federal Employment (OF 612)

(“Application”).

       After conducting a hearing at which Brown chose not to testify, the Administrative

Judge (“AJ”) found that the Agency established by a preponderance of the evidence

that there was a factual basis for each charge, and sustained the removal decision. The

Initial Decision became the Final Decision of the Board on July 25, 2005, after the

Board denied Brown’s petition for review. Brown timely appealed to this court. We

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




05-3320                                     2
                                     II. DISCUSSION

                                 A. Standard of Review

       Pursuant to 5 U.S.C. § 7703(c), this court must affirm the Board’s decision unless

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. Harris v. Dep’t of Veterans

Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998).       The petitioner bears the burden of

establishing reversible error in the Board’s decision. Id.

                                       B. Analysis

       On appeal, Brown makes four arguments. First, Brown argues that in sustaining

Charges I and II, the AJ failed to consider that she was required to perform many duties

other than the ones that she refused to perform, that she had issues of workload

distribution, that the Agency repeatedly denied her leave requests, and that the Agency

expected her to work in isolation. Second, Brown asserts that in sustaining Charges III

and IV, the AJ applied the wrong law in determining that she misrepresented facts on

the Declaration and Application, because at the time she filled them out, an AJ decision

of May 22, 2002, was in force, which stated that there was a binding settlement

agreement which ended Brown’s tenure at DoD. Third, Brown argues that the AJ failed

to consider the effects on Brown of upholding the removal decision, i.e., loss of wages,

benefits, and employment opportunities. Finally, Brown asserts that it was error for the

AJ not to grant Brown’s motion to disqualify.

       The Board did not err in upholding the decision to remove Brown.




05-3320                                      3
      As to Charges I and II, substantial evidence supports the finding that Brown

refused to follow instructions, and was unwilling to perform work assigned to her.

Brown does not dispute the facts underlying these charges, but instead asserts that the

Board erred by not giving more weight to her explanations.         However, the Board

acknowledged the explanations, and concluded that they did not excuse her actions.

Because Brown has not cited any evidence to cause us to question the Board’s factual

conclusions, and those conclusions are otherwise supported by evidence, we will not

disturb the Board’s findings. See Dickey v. Office of Pers. Mgmt., 419 F.3d 1336, 1339

(Fed. Cir. 2005) (“‘Substantial evidence’ is defined as ‘such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.’” (citation omitted)).

      As to Charge III, Question 11 on the Declaration required Brown to indicate

whether “you [were] fired from any job for any reason, . . . [or whether ] you [left] any

job by mutual agreement because of specific problems.” Relying on the testimony of

Agency officials, the AJ found that if Brown believed that an earlier settlement

agreement was in force, then she was obligated to indicate that she left the job by

“mutual agreement;” but that if Brown believed that she had revoked the settlement

agreement, then she was obligated to indicate that she had been “fired.” The AJ found

that either way, Brown misrepresented a fact by indicating “No” next to Question 11.

Substantial evidence supports this conclusion.      As noted by the AJ, even if the

settlement agreement was in place when Brown completed the Declaration, as Brown

appears to now argue, a reasonable person would have known to indicate that they left

a job by “mutual agreement.” There is no lingering legal question here. As to Charge

IV, substantial evidence supports the conclusion that Brown misrepresented the identity




05-3320                                    4
of her DoD supervisor. Brown should have identified either Evans (as required by the

settlement agreement), or Richardson (Brown’s DoD supervisor before removal). She

did not identify either person.

       As to the argument that the AJ did not account for pecuniary and non-pecuniary

factors like lost wages, benefits, and future employment opportunities in upholding the

removal decision, these factors are irrelevant both in determining whether the Board’s

decision to sustain the charges is supported by substantial evidence, and in determining

whether removal was unreasonable under the Douglas factors. Finally, we find no error

in the decision of the AJ to deny Brown’s motion to disqualify. Although “[a] party may

file a motion asking the judge to withdraw on the basis of personal bias or other

disqualification . . . , [t]he reasons for the request must be set out in an affidavit or sworn

statement under 28 U.S.C. 1746.” 5 C.F.R. § 1201.42(b) (2005). Because Brown failed

to set out the request in an affidavit or a sworn statement, the AJ properly denied the

motion.

                                       III. Conclusion

       Because the Board’s decision was not 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, we affirm.




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