Yuriditsky v. Office of Personnel Management

20 F. App'x 879
CourtCourt of Appeals for the Federal Circuit
DecidedOctober 9, 2001
DocketNo. 01-3229
StatusPublished

This text of 20 F. App'x 879 (Yuriditsky v. Office of Personnel Management) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Yuriditsky v. Office of Personnel Management, 20 F. App'x 879 (Fed. Cir. 2001).

Opinion

MICHEL, Circuit Judge.

Alan S. Yuriditsky seeks review of a final decision from the Merit Systems Protection Board (“Board”) affirming the Office of Personnel Management’s (“OPM”) decision that found Yuriditsky ineligible to receive a discontinued service annuity because his removal was for “misconduct” as well as lack of a security clearance. Yuriditsky v. Office of Pers. Mgmt., No. DC-0831-01-0063-1-1 (Feb. 23, 2001). Because substantial evidence ultimately supports this decision and because we reject the argument that the Board committed an error of law in reaching its conclusion, we affirm,.

Background

Yuriditsky served at the Defense Intelligence Agency (“DIA”), most recently in the position of “Supervisory Intelligence Officer (Military Capabilities).” Although this appeal only concerns Yuriditsky’s eligibility for a discontinued service annuity, the DIA, the Office of Personnel Management and later the Board itself found him ineligible because of removal for “misconduct,” one of the grounds that renders an employee statutorily ineligible to receive the benefit at issue. Consequently, we must explore the reasons underlying Yuri-ditsky’s removal.

In January 1999, the DIA notified Yuri-ditsky about its intent to revoke his security clearance. As a condition of their employment, all DIA employees must have a security clearance. In a “statement of reasons” for this intended action, DIA identified the following as information that put Yuriditsky’s security clearance at issue: a 1998 ¿rrest for malicious wounding and subsequent conviction and prison sentence for assault and battery; a May 1995 charge and sentence for solicitation, which were eventually dismissed after Yuriditsky had performed 100 hours of community service; an October 1991 charge for “curse and abuse,” which was later nolle pressed; an October 1996 “verbal altercation” in which Yuriditsky had allegedly threatened “violence” against another DIA employee and had thereby caused “that employee to fear for her safety”; and a Fall 1998 incident in which Yuriditsky “anonymously transmitted pornographic material to a subordinate co-worker on at least one occasion via the Internet to her personal electronic mail account.”

In June 1999, Yuriditsky appeared before DIA officials to address the proposed grounds for revoking his clearance and, in August 1999, a DIA official notified him that DIA was indeed revoking it. In its decision, DIA indicated that Yuriditsky’s actions evidenced an absence of the “judgment, trustworthiness and personal conduct” needed to function in the workplace and to hold a position “responsible for protecting National security.” Specifically, the DIA notice stated that Yuriditsky’s “repeated involvement in incidents ... reveal [sic] a pattern of aggressive actions which collectively causes [sic] continual questions about your reliability and stability. You have revealed yourself to be combative, argumentative, and have repeatedly exhibited an explosive temper followed by scurrilous behavior.” After reconsidering its decision (at Yuriditsky’s request), the DIA thereafter notified him that because he no longer held the requisite security clearance, it also intended to remove him from his position.

[881]*881DIA representatives met with Yuridit-sky again to address the intended action and, in February 2000, DIA decided to remove him from his position. At the time of this action, Yuriditsky had worked at the DIA for more than 28 years and had reached the age of 50. Under 5 U.S.C. § 8336(d)(1) (West 2001), employees who lose their job or involuntarily “separate” from government service “after becoming 50 years of age and completing 20 years of service” may receive a discontinued service annuity unless their separation resulted from “removal for cause on charges of misconduct.” In a letter dated March 27, 2000, DIA’s personnel office notified OPM that it had removed Yuriditsky “due to failure to meet a condition of employment (security clearance).” The letter adds that absent the “loss of security clearance, there would be no basis (performance or conduct) to remove Mr. Yuriditsky from employment at this time.”

Yuriditsky thereafter applied for the discontinued service annuity mentioned above but the OPM denied his application, finding that the documents in Yuriditsky’s file showed that DIA had removed him not only because of the revocation of his security clearance, but also “because of criminal and personal misconduct, which led to the revocation.” Following a hearing, the Board affirmed. In so doing, the Board noted that while Yuriditsky had described some of the allegations contained in these documents as either “inaccurate or exaggerated,” he had also admitted to the 1998 conviction and “brief jail sentence” for assault. In addition, the Board considered Yuriditsky’s assertion that he had pled guilty to this charge only because counsel and the DIA had advised him to do so. “Nevertheless,” the Board stated, the evidence still showed that Yuriditsky’s removal rested, “in part, on misconduct to which he had pled guilty.”

Here, Yuriditsky first argues that DIA actually removed him because of “whistle blowing actions” relating to the alleged “cover up of the possible causes of Gulf War Syndrome.” Neither OPM nor the Board considered this “true reason” for Yuriditsky’s removal, he argues. At the same time, the record shows that Yuridit-sky never presented this whistle-blowing allegation to the Office of Special Counsel.

Yuriditsky also contends that the OPM and the Board “over ruled” our decision in Litzenberger v. Office of Personnel Management, 231 F.3d 1333 (Fed.Cir.2000) because, as we understand his argument, OPM had failed to provide him with the criteria it uses to determine “what conduct disqualifies an employee from receiving” a discontinued service annuity. Last, Yuri-ditsky argues that the Board erroneously “allowed OPM to pursue hearsay and speculative lines of questioning at [his] hearing” and that “DIA’s General Counsel and [his] immediate supervisor advised [him] to accept a plea bargain rather than go to trial.” In a similar vein, he claims that the Board also denied him the opportunity to call an “OPM Benefits Specialist” as a witness who “could have testified that he was going to approve [Yuriditsky’s application for a discontinued service annuity] until a DIA representative cautioned him against doing so.”

Discussion

We play only a limited role in reviewing Board decisions. See, e.g., Deweese v. Tennessee Valley Auth., 35 F.3d 538, 541 (Fed.Cir.1994). Under 5 U.S.C. § 7703(c), we may reverse the Board only if its decision was: (1) arbitrary, capricious, an abuse of discretion or not in accordance with law; (2) obtained without the procedures required by law; or (3) not supported by substantial evidence. 5 U.S.C. [882]*882§ 7703(c). None of these limited grounds was shown here.

First, Yuriditsky has given us no reason to believe that the Board here had failed to consider his argument that his “whistle blowing” activities actually led to his dismissal.

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Related

F. Prescott Ward v. Merit Systems Protection Board
981 F.2d 521 (Federal Circuit, 1992)
Richard A. Deweese v. Tennessee Valley Authority
35 F.3d 538 (Federal Circuit, 1994)
In Re Robert J. Gartside and Richard C. Norton
203 F.3d 1305 (Federal Circuit, 2000)
Gonzales v. West
218 F.3d 1378 (Federal Circuit, 2000)

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