                 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


                                       05-3230

                                THOMAS F. CRUISE,

                                               Petitioner,

                                          v.

                       SOCIAL SECURITY ADMINISTRATION,

                                               Respondent.

                          ___________________________

                          DECIDED: February 13, 2006
                          ___________________________


Before LOURIE, Circuit Judge, CLEVENGER, Senior Circuit Judge, and BRYSON,
Circuit Judge.

PER CURIAM.

                                      DECISION

      Thomas F. Cruise petitions for review of a decision of the Merit Systems

Protection Board, Docket No. BN-0752-03-0066-I-1, affirming the decision of the Social

Security Administration to remove Mr. Cruise from federal service. We affirm.

                                   BACKGROUND

      At the time of his removal, Mr. Cruise worked as a Criminal Investigator at the

Boston office of the Social Security Administration’s Office of Inspector General. The

agency removed him in January 2003, based on its finding that he acted improperly by
using his position and the agency’s resources to gain an advantage in a lawsuit filed by

his son, Patrick Cruise.

       Patrick Cruise worked in the Miami, Florida, office of the United States Secret

Service when he was hospitalized in 1999. According to Thomas Cruise, while Patrick

was at the hospital he was administered a drug test that erroneously indicated a positive

result for drug use. Thomas Cruise alleges that Shawn Schaefer—who worked at the

hospital where Patrick Cruise was treated—improperly disclosed the test result to her

husband, Merek Schaefer, who worked at the Miami office of the Secret Service.

Patrick Cruise was later terminated from the Secret Service on other grounds and filed a

lawsuit in 2001 stemming from his hospitalization.

       According to the agency’s notice of proposed removal, Thomas Cruise used his

position as a law enforcement officer and his access to agency records to assist Patrick

Cruise with his lawsuit. Specifically, the agency alleged that on June 29, 2001, Thomas

Cruise accessed information on the “Autotrak” database pertaining to Shawn Schaefer,

her husband Merek Schaefer, and her mother Karen Tuttle. “Autotrak” is a proprietary

data service available to several different law enforcement agencies. It provides some

information beyond that in the agency’s records, and allows the user to look up

information such as a person’s address, social security number, and driver’s license

number. The agency alleged that Thomas Cruise also accessed the Social Security

Administration’s own records pertaining to Ms. Tuttle and the Schaefers. Those records

include current and past addresses, employment and earning histories, and social

security numbers for all persons in the agency’s database. After acquiring personal

information about Ms. Tuttle and the Schaefers, Thomas Cruise went to their residence




05-3230                                    2
in Maryland on July 22, 2001, and on September 4, 2001. During the July 22 visit,

according to the agency, Mr. Cruise appeared at the Schaefers’ residence with a

stranger and attempted to discuss matters related to his son’s termination and his

lawsuit. The stranger spoke with the Schaefers’ three-year-old child, and Mr. Cruise

commented to the Schaefers about taking their home, having Merek Schaefer fired from

the Secret Service, and including the Schaefers in Patrick Cruise’s lawsuit if they did not

cooperate with him. During the September 4 encounter, Mr. Cruise asked Ms. Tuttle

about the whereabouts of Shawn Schaefer and wrote down Ms. Tuttle’s license plate

number. Shortly thereafter, Shawn Schaefer filed criminal charges of harassment and

trespass against Mr. Cruise, and on September 9, 2001, Ms. Tuttle wrote a letter to the

agency describing Mr. Cruise’s conduct and stating that she feared that Mr. Cruise

might try to interfere with her Social Security benefits.

       On November 4, 2001, the agency proposed Mr. Cruise’s removal. The notice of

proposed removal contained four charges: (1) “Unauthorized Access of SSA [Social

Security Administration] records for Personal Gain and/or the Benefit of Another,” (2)

“Unauthorized Access of SSA records in an Attempt to Personally Gain and/or Benefit

Another,” (3) “Misuse of SSA Resources,” and (4) “Conduct Unbecoming a Federal Law

Enforcement Officer.”     Each charge had several supporting specifications, and the

second charge was proposed as an alternative to the first. On January 3, 2003, the

deciding official sustained charges 1, 3, and 4, stated that he would have sustained the

alternative charge 2 if it had been necessary to do so and directed that Mr. Cruise be

removed from his position as of January 11, 2003.




05-3230                                       3
       Mr. Cruise appealed to the Merit Systems Protection Board, contesting the

charges and asserting that his removal violated the Whistleblower Protection Act. The

Board held a hearing and issued a decision sustaining charges 1, 3, and 4. Although

the administrative judge did not sustain all seven of the specifications supporting charge

4, she found that the specifications she did sustain were sufficient to support the

charge.   The administrative judge did not address charge 2 because it was an

alternative charge, not specifically sustained by the agency, and therefore was not

before her. After sustaining the charges, the administrative judge held that the charges

had a nexus to Mr. Cruise’s employment and that removal was a reasonable penalty.

Finally, the administrative judge held that, although Mr. Cruise had made disclosures

protected by the Whistleblower Protection Act and although those disclosures were a

contributing factor in his removal, the agency had met its burden of proof of showing

that it would have removed Mr. Cruise even in the absence of his disclosures. The

administrative judge’s decision became final when the full Board denied Mr. Cruise’s

petition for review. Mr. Cruise now petitions for review by this court.

                                      DISCUSSION

       Mr. Cruise makes several arguments in an effort to overturn the Board’s decision.

First, he argues that the administrative judge erred in sustaining charge 1 because the

agency did not prove all elements of the charge.            Second, he argues that the

administrative judge failed to acknowledge “serious acts of perjury” at the hearing on the

part of witnesses who testified against him. Third, he argues that the administrative

judge erred by refusing to admit certain evidence related to the agency’s treatment of

similarly situated employees. Fourth, he argues that the administrative judge’s analysis




05-3230                                      4
of the reasonableness of the penalty in light of the Douglas factors was flawed. Finally,

Mr. Cruise argues that the administrative judge erroneously denied a request to

disqualify herself for bias against Mr. Cruise’s attorney.

       The agency’s first charge against Mr. Cruise was “Unauthorized Access of SSA

records for Personal Gain and/or the Benefit of Another.”        The two specifications

supporting that charge were:

       1. On June 29, 2001 you accessed Shawn Schaefer’s record without
       authorization and obtained knowledge and/or information from her
       account.

       2. Your access of this information benefited you and/or your son. Your
       query provided you with information regarding Shawn Schaefer’s current
       and past places of employment as well as earnings. You also obtained
       the names of her parents.

The notice of proposed removal also listed four aggravating factors and referred to the

Office of Inspector General’s Data Policy, under which the charged conduct is a

“category 3” violation, for which a first offense is punishable by removal. Mr. Cruise

argues that the Board should not have sustained this charge because the agency did

not show with sufficient specificity (1) what information Mr. Cruise actually accessed, or

(2) in what way Mr. Cruise or his son may have “benefited” from any information that

they accessed.

       At the Board hearing, Paul Schmidt, an Information Technology Specialist for the

agency, presented evidence showing that Mr. Cruise’s six-digit PIN number was used

on June 29, 2001, to access Shawn Schaefer’s agency records. Mr. Schmidt also

showed that the user executed seven queries with respect to Mrs. Schaefer’s records,

one of which would have retrieved her full name, date and place of birth, and parents’

names, and the other of which would have revealed her employment and earnings



05-3230                                      5
history. Mr. Schmidt acknowledged that he could not identify which options the user

selected in the course of each query, or for which years the user requested records.

For example, he explained that the earnings history query would have revealed that

Mrs. Schaefer worked at the hospital that treated Patrick Cruise while Patrick was a

patient only if, as part of the query, the user had requested a date range that included

the dates of Patrick Cruise’s hospital stay. Mr. Cruise argues that this shortcoming in

the evidence is fatal to the charge. We disagree.

      First, regarding Mr. Cruise’s assertion that the agency did not prove what

information he accessed, we note that Mr. Schmidt’s testimony—which the

administrative judge credited—showed that Mr. Cruise’s PIN number was used in

combination with queries that would have retrieved the information listed in the

specification supporting the charge. Moreover, the circumstantial evidence showed that

23 days after a query was executed that would have retrieved Mrs. Schaefer’s address,

Mr. Cruise appeared at Mrs. Schaefer’s residence in Maryland. From that evidence, it

was reasonable for the administrative judge to find that it was more likely than not that

Mr. Cruise accessed the information to which the specification referred. As to whether

the agency proved that Mr. Cruise actually benefited from the information he accessed,

the administrative judge reasonably concluded that Mr. Cruise benefited by confirming

Mrs. Schaefer’s place of employment and identifying her as a potential source of

information in his inquiry regarding his son’s case. Because the evidence was sufficient

to show that Thomas Cruise accessed information that would confirm Mrs. Schaefer’s

employment at the hospital that treated Patrick Cruise and her marriage to Merek

Schaefer, one of Patrick Cruise’s former co-workers, the evidence was sufficient to




05-3230                                    6
support the agency’s charge that Mr. Cruise’s accessing that information “benefited

[him] and/or [his] son,” as the agency charged. Substantial evidence thus supports the

administrative judge’s decision sustaining charge 1.

      Mr. Cruise’s second challenge to the Board’s decision is that the administrative

judge “failed to acknowledge serious acts of perjury” on the part of the witnesses who

testified against him.   Mr. Cruise bases his argument largely on the fact that the

testimony of the agency’s witnesses differed from his own. In addition, he points to

what he considers flaws in the evidence against him, such as the fact that the official

who proposed his removal stated that he had lost trust and confidence in Mr. Cruise, yet

he allowed Mr. Cruise to remain at work for several weeks before he was placed on

administrative leave. Mr. Cruise also notes that, although Karen Tuttle stated that no

one helped her prepare her letter to the agency that precipitated the investigation

against Mr. Cruise, the letter contains an instance of what could be described as “law

enforcement jargon.”     While these and other points provide possible grounds for

challenging the credibility of some of the witnesses, they fall far short of establishing

that any of the witnesses perjured themselves, or that their testimony was “inherently

improbable or discredited by undisputed evidence or physical fact,” which is what is

required to disturb an administrative judge’s decision to credit a witness’s testimony.

Hanratty v. Dep’t of Transp., 819 F.2d 286, 288 (Fed. Cir. 1987); see also Wright v. U.S.

Postal Serv., 183 F.3d 1328, 1334 (Fed. Cir. 1999); Pope v. U.S. Postal Serv., 114 F.3d

1144, 1149 (Fed. Cir. 1997).

      Mr. Cruise’s third challenge to the Board’s decision is that the administrative

judge erred in refusing to admit an exhibit that would have established that the agency




05-3230                                    7
did not fire two agents assigned to the same office as Mr. Cruise who engaged in a

fistfight at the Boston Police Department firing range during the time when the agency

was investigating Mr. Cruise. Mr. Cruise argues that the agency’s failure to investigate

or take action against the agents involved—who were, in Mr. Cruise’s words, “similarly

situated employees who were not Whistleblowers”—shows that the agency’s decision to

remove him was unduly harsh and improperly motivated. To challenge a decision of the

Board on the basis of an erroneous evidentiary ruling, an appellant must demonstrate

that the ruling was both prejudicial and an abuse of discretion. See Veneziano v. Dep’t

of Energy, 189 F.3d 1363, 1369 (Fed. Cir. 1999); Baker v. Dep’t of Health & Hum.

Servs., 912 F.2d 1448, 1457 (Fed. Cir. 1990); Curtin v. Office of Pers. Mgmt., 846 F.2d

1373, 1379 (Fed. Cir. 1988).       Mr. Cruise does not explain why he believes the

administrative judge’s evidentiary ruling was erroneous, but instead simply points to a

portion of the hearing transcript. The hearing transcript shows that the administrative

judge apparently rejected his exhibit because it was cumulative of testimony already in

the record. Mr. Cruise’s counsel elicited testimony from Leo Sullivan—the official who

proposed Mr. Cruise’s removal—to the effect that he witnessed the incident at the

Boston Police firing range and that the agents involved were only minimally disciplined.

The agency did not dispute this, and Mr. Cruise’s counsel offered no basis for admitting

the exhibit other than that it would corroborate that testimony.            Moreover, the

administrative judge’s decision cited this portion of Mr. Sullivan’s testimony and

accepted it as true. In light of the fact that the exhibit was cumulative and did not relate

to an issue that was in dispute, Mr. Cruise has not shown that he was prejudiced by the

exclusion of the exhibit.




05-3230                                      8
       Fourth, Mr. Cruise argues that the Board’s analysis of the reasonableness of the

penalty in light of the factors set forth in Douglas v. Veterans Admin., 5 M.S.P.R. 280,

305-06 (1981), was flawed. Specifically, Mr. Cruise argues that removal was too harsh

a penalty in light of the fact that the only charge in the Notice of Proposed Removal that

carries a penalty of removal—charge 1—was unsustainable. Because we have upheld

the administrative judge’s decision sustaining charge 1, we reject this argument. The

administrative judge sustained all of the agency’s charges and performed a thorough

analysis of the Douglas factors, in which she considered, inter alia, that some of the

specifications underlying the charges were not fully proved. We discern no errors of law

or abuse of discretion in the administrative judge’s weighing of the Douglas factors, and

we therefore do not reverse the Board’s decision on that basis.

       Finally, Mr. Cruise argues that he did not receive a fair hearing because the

administrative judge was biased against his attorney. In support of his claim, he argues

that his counsel “provided evidence that the [administrative judge] had exhibited such a

level of antagonism towards Appellant’s counsel that it caused her to knowingly make

false statements during a previous Board appeal,” and he points to a motion for

interlocutory appeal that was filed below. This argument is meritless.

       The alleged “false statements during a previous Board appeal” refer to a verbal

exchange in a different appeal that did not involve Mr. Cruise, between the

administrative judge in Mr. Cruise’s case and Ernest Hadley, who represented Mr.

Cruise.       In that other appeal, Mr. Hadley asked the administrative judge for the

opportunity to file written closing arguments within two weeks of his receipt of the

transcript.     The administrative judge granted Mr. Hadley’s request, but during the




05-3230                                     9
exchange indicated that she felt some amount of time pressure and that if she was

unable to issue a decision in the case by the end of the calendar year, “someone else

will have to come in and do it, because they’ll remove me.”

       In Mr. Cruise’s motion for disqualification he argued that the administrative

judge’s statement was an implicit (and false) statement that she was subject to a

“performance improvement plan,” and that the statement showed that the administrative

judge was biased against Mr. Hadley (and thus unable to be impartial in Mr. Cruise’s

case). On appeal to this court, Mr. Cruise merely references his motion for interlocutory

appeal seeking the administrative judge’s recusal and states that he did not receive a

fair trial. Neither Mr. Cruise’s submissions to this court, nor anything else in the record

reflects any basis for inferring bias on the part of the administrative judge, and we

therefore decline to reverse the Board’s order on that basis.




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