                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

                                       05-3273


                                  JOHN T. MILLER,

                                                      Petitioner,

                                           v.

                           DEPARTMENT OF THE NAVY,

                                                      Respondent.


                          __________________________

                          DECIDED: December 20, 2005
                          __________________________

Before NEWMAN, DYK, and PROST, Circuit Judges.

PER CURIAM.

      John T. Miller, Ph.D., (“Miller”) petitions for review of the final decision by the

Merit Systems Protection Board (“MSPB” or “Board”) affirming his removal by the Naval

Research Laboratory (“NRL” or “agency”) based upon his unacceptable performance.

Miller v. Dep’t of the Navy, No. DC0432030780-I-1 (M.S.P.B. May 18, 2005). We affirm.

                                  I. BACKGROUND

      Miller was employed by the agency as an NO-0080-V Supervisory Security

Specialist.1 In September 2002, Captain Charles Fowler, NRL’s Chief Staff Officer,

became Miller’s first-line supervisor and thereafter issued Miller a notice of
unacceptable performance and established a ninety-day performance improvement

period (“PIP”) for him. The PIP required Miller to complete seven tasks, but Fowler

found that Miller only performed one task satisfactorily and proposed his removal based

upon the failure to perform the other six tasks.

       The agency then removed Miller from his position effective August 14, 2003,

based upon his unacceptable performance of five of the six tasks, electing not to

consider one of the tasks. Miller subsequently appealed his removal to the Board. In a

February 10, 2004 initial decision, the administrative judge affirmed the agency’s

decision and denied Miller’s petition.     Thereafter Miller petitioned the full Board for

review, and the initial decision became the final decision of the Board on May 18, 2005,

after the full Board denied Miller’s petition for review for failure to meet the criteria set

forth under 5 C.F.R. § 1201.113. Miller timely sought review in this court.

       We have jurisdiction to review the Board’s decision pursuant to 28 U.S.C.

§ 1295(a)(9).

                                     II. DISCUSSION

                                  A. Standard of Review

       We must sustain 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.” 5 U.S.C. § 7703(c) (2000); Rosete v. Office of Pers. Mgmt.,

48 F.3d 514, 516 (Fed. Cir. 1995).




       1
                Miller’s NO-0080-V position was the equivalent to a senior GS-15 position.


05-3273                                      2
       An employee’s performance is unacceptable if the employee fails to meet a

single critical element in the established performance standards. 5 U.S.C. § 4301(3)

(2000). When reviewing performance-based actions, this court gives “deference to the

judgment by each agency of the employee’s performance in light of the agency’s

assessment of its own personnel needs and standards.”              Rogers v. Dep’t of Def.

Dependents Sch., 814 F.2d 1549, 1552-53 (Fed Cir. 1987).

                                       B. Analysis

       On appeal, Miller challenges the factual findings of the Board, and argues that

the agency’s entire system of performance evaluations is illegal because they “impose[]

a status of employment at will.”      In support, Miller first maintains that the Board

incorrectly decided certain facts and failed to take into account other facts, namely that:

       The supervisor failed to provide performance feedback during the PIP
       period, regarding issues ultimately sustained for removal. Therefore the
       Agency failed to provide a reasonable opportunity to improve and failed to
       properly supplement vague performance standards. Also, notice of
       deficiencies was factually inaccurate; deficiencies cited for removal were
       insufficient to justify it. Findings of the MSPB Decision are contrary to the
       documented record.

Miller additionally argues that the Board applied the wrong law:

       The MSPB and Agency have disregarded both the prior opinions of the
       Board itself and the governing decisions of this Court, in regard to the
       validity of the performance standards, and requirements for administration
       of a PIP, and other matters. The Agency has not met its burden of proof
       that the removal was justified by alleged deficiencies, and that I knew or
       should have known that those deficiencies would constitute an overall
       rating of unacceptable.

Further, Miller argues that the Board failed to consider important grounds for relief,

namely that:

       The combination of vague standards and lack of feedback totally defeats
       the intended protections of the Merit System, and effectively imposes a



05-3273                                      3
         status of employment at will, in violation of law. The deliberate withholding
         and dissembling of performance feedback during the PIP should invalidate
         the Agency’s case.

Finally, Miller maintains that the Board’s decision was wrong because “[p]rior

performance should be considered where immediately [sic] prior performance was

commended, the level of performance did not change, but application and interpretation

of standards changed abruptly and drastically without explanation.”

         In response, the agency maintains that substantial evidence supports the Board’s

decision that the agency had established that Miller’s performance was unacceptable.

In this regard, the agency points out that it is not this court’s function to reweigh

evidence or redetermine the credibility of witnesses.         It maintains that the Board

correctly rejected Miller’s argument that the standards were vague and that there was a

lack of feedback, noting that the ninety-day PIP clearly laid out seven tasks and

testimony at the hearing confirmed the existence of clear standards and feedback.

         We address each of Miller’s arguments in turn.          In regards to his factual

challenges, the Board found that the agency issued Miller a notice of unacceptable

performance, established a ninety-day PIP for Miller that required Miller to complete

seven tasks, and based its removal of Miller upon his failure to perform five of those

tasks.    We conclude that the Board’s determinations are supported by substantial

evidence, including the testimony of Miller’s supervisor, and multiple written descriptions

documenting Miller’s performance.

         Second, Miller provided no support for his contention that the Board applied the

wrong law including his argument that the agency did not meet its burden of proof and

we can discern nothing from the Board’s analysis or conclusion that substantiates his




05-3273                                       4
allegation.   Furthermore we note that this court gives deference to the agency’s

judgment of the employee’s performance.

       Next, with regard to Miller’s argument that the Board failed to consider important

grounds for relief, contending that there were “vague standards and lack of feedback,”

we note that the ninety-day PIP for Miller laid out seven tasks of which the agency

found, and the Board affirmed, that Miller failed to complete five. Further, the record

reflects that “Captain Fowler directed Dr. Miller to discuss any questions with him and

offered to consider any additional assistance that Dr. Miller believed would be

helpful. . . . Captain Fowler repeatedly met with Dr. Miller during his PIP.” Thus, even

though Miller may not have been given specific feedback in regard to all of his tasks

during the PIP period, the agency’s conduct was sufficient to satisfy its obligation.

       Finally, Miller has failed to provide legal or factual support for his contention that

his prior performance reviews gave him a “commendable” rating, that these reviews

were not considered, and that these reviews should have been considered.                 We

conclude that Miller’s arguments do not provide a sufficient basis to overturn the

Board’s decision, and we therefore affirm.




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