NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`LUTHER BEBLEY, III,
`Petitioner
`
`v.
`
`DEPARTMENT OF THE AIR FORCE,
`Respondent
`______________________
`
`2018-2221
`______________________
`
`Petition for review of the Merit Systems Protection
`Board in No. DA-0752-17-0349-I-1.
`______________________
`
`Decided: August 2, 2019
`______________________
`
`ROBERT CHRIS PITTARD, Pittard Law Firm, San Anto-
`nio, TX, argued for petitioner.
`
` DAVID MICHAEL KERR, Commercial Litigation Branch,
`Civil Division, United States Department of Justice, Wash-
`ington, DC, argued for respondent. Also represented by
`JOSEPH H. HUNT, TARA K. HOGAN, ROBERT EDWARD
`KIRSCHMAN, JR.
` ______________________
`
`Before DYK, REYNA, and TARANTO, Circuit Judges.
`
`

`

`2
`
`BEBLEY v. AIR FORCE
`
`REYNA, Circuit Judge.
`Mr. Luther Bebley, III appeals a decision of the Merit
`Systems Protection Board sustaining his removal by the
`Department of the Air Force. The Board affirmed Mr.
`Bebley’s removal based on a charge of conduct unbecoming
`a federal employee. Because the Board’s decision is sup-
`ported by substantial evidence and Mr. Bebley’s procedural
`due process claim was waived, we affirm.
`BACKGROUND
`Mr. Bebley was employed by the Department of the Air
`Force (“Air Force”) as an Information (Network) Specialist
`at Joint Base San Antonio, Texas. On May 11, 2016, Mr.
`Bebley met with his supervisor to discuss work-related
`matters. During the meeting, Mr. Bebley became agitated
`and shouted obscenities at his supervisor for several
`minutes. Three coworkers in a different office overheard
`Mr. Bebley’s shouting. One coworker intervened and es-
`corted Mr. Bebley out of the supervisor’s office. Mr. Bebley
`continued to be agitated and attempted to return to the su-
`pervisor’s office. The supervisor contacted the military
`base police.
`The military police investigated the incident and is-
`sued a Report of Investigation (“ROI”). The ROI contained
`witness statements and twenty-one attached exhibits. ROI
`Exhibit 21 is a printout of Mr. Bebley’s criminal history.
`On September 26, 2016, the Air Force issued a notice
`of proposed removal, charging Mr. Bebley with conduct un-
`becoming a federal employee based on the events described
`above. This notice indicated that the proposing official con-
`sidered the factual allegations, witness statements from
`the ROI, and several policy documents. The notice did not
`mention ROI Exhibit 21. Mr. Bebley submitted oral and
`written responses to the proposed removal. On Febru-
`ary 15, 2017, the deciding official issued a notice of addi-
`tional information. In this notice, the deciding official
`
`

`

`BEBLEY v. AIR FORCE
`
`3
`
`stated that he would consider three additional documents
`in making his decision: ROI Exhibits 13 and 20, and an in-
`vestigative report detailing Mr. Bebley’s past allegations of
`unfair treatment and hostile work environment. On
`March 8, 2017, Mr. Bebley met with the deciding official
`and responded to the notice of additional information.
`On May 9, 2017, the Air Force sustained the charge
`against Mr. Bebley and issued a notice of decision to re-
`move him. The deciding official noted that his decision was
`based on the reasons and evidence identified in the notice
`of proposed removal, the notice of additional information,
`and Mr. Bebley’s written responses.
`On June 2, 2017, Mr. Bebley appealed his removal to
`the Merit Systems Protection Board (“Board”). The Air
`Force filed a response on June 26, 2017, and attached a re-
`dacted version of the ROI. Although the redacted ROI did
`not include Exhibit 21, the redacted ROI referenced Ex-
`hibit 21 and stated that Exhibit 21 contained Mr. Bebley’s
`criminal history. The Air Force alleges that it provided an
`unredacted version of the ROI with Exhibit 21 to Mr.
`Bebley in discovery, although Mr. Bebley disputes this al-
`legation. Appellee’s Br. 8–9; Appellant’s Br. 18, 21.
`At the prehearing conference, Mr. Bebley’s counsel in-
`quired about the Air Force’s omission of ROI Exhibit 21
`from its response. Mr. Bebley’s counsel further objected to
`the Air Force’s use of ROI Exhibit 21 at the hearing as
`“prejudicial and not relevant.” S. App’x 26. Mr. Bebley’s
`counsel, however, did not request an unredacted copy of the
`ROI with Exhibit 21.
`On March 21, 2018, a hearing was held before an ad-
`ministrative judge (“AJ”). During the hearing, Mr.
`Bebley’s counsel requested that ROI Exhibit 21 be made
`part of the record. The AJ granted this request, leaving the
`evidentiary record open for seven days after the hearing to
`permit the Air Force to submit ROI Exhibit 21.
`App’x 2 n.1. Several of Mr. Bebley’s coworkers, the
`
`

`

`4
`
`BEBLEY v. AIR FORCE
`
`supervisor, and the Air Force deciding official testified at
`the hearing. App’x 2–9. Mr. Bebley’s counsel did not ques-
`tion the deciding official about what information the official
`considered
`in his penalty determination,
`including
`whether he considered ROI Exhibit 21, although counsel
`had “ample opportunity” to do so. App’x 2 n.1.
`On March 27, 2018, the Air Force submitted ROI Ex-
`hibit 21 into the record. App’x 36–37; S. App’x 21. The fol-
`lowing day, Mr. Bebley filed a declaration with the Board,
`stating that he had never previously seen ROI Exhibit 21
`and attempting to explain each incident detailed in ROI
`Exhibit 21. App’x 45–46. The Air Force moved to strike
`Mr. Bebley’s declaration. S. App’x 21–22.
`On April 18, 2018, the AJ ordered the record reopened
`for the sole purpose of permitting the Air Force to supple-
`ment the record with Mr. Bebley’s March 8, 2017 reply to
`the notice of additional information. The AJ’s order stated
`that “[n]o further evidence or argument will be considered
`unless shown to be new and material evidence not availa-
`ble before the close of [the] record.” App’x 52.
`On May 2, 2018, the AJ issued an initial decision, sus-
`taining Mr. Bebley’s removal. The AJ credited the testi-
`mony of Mr. Bebley’s coworkers and his supervisor, finding
`it to be credible and consistent, and determined that the
`Air Force had proven by a preponderance of the evidence
`the charge of conduct unbecoming a federal employee.
`App’x 7–9. With respect to ROI Exhibit 21, the AJ deter-
`mined that there was “no record evidence that the deciding
`official considered the appellant’s criminal history or that
`[Mr. Bebley’s] due process rights were violated.”
`App’x 2 n.1. Despite finding that Mr. Bebley’s declaration
`did “not impact the outcome of this appeal,” the AJ denied
`the Air Force’s motion to strike the declaration.
`App’x 3 n.1.
` The
`initial decision became final on
`June 6, 2018. Appellant’s Br. 11. Mr. Bebley timely ap-
`pealed. We have jurisdiction under 28 U.S.C. § 1295(a)(9).
`
`

`

`BEBLEY v. AIR FORCE
`
`5
`
`DISCUSSION
`This court will affirm the Board’s final decision unless
`it was (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); Einboden v. Dep’t of Navy, 802 F.3d
`1321, 1324 (Fed. Cir. 2015). A factual finding is supported
`by substantial evidence if a reasonable mind might accept
`the evidence as adequate to support the finding. Snyder v.
`Dep’t of Navy, 854 F.3d 1366, 1372 (Fed. Cir. 2017). Addi-
`tionally, this court will set aside any Board decision incon-
`sistent with the Due Process Clause of the Fifth
`Amendment. Stone v. F.D.I.C., 179 F.3d 1368, 1374 (Fed.
`Circ. 1999).
`Mr. Bebley argues that the AJ’s decision sustaining his
`removal is unsupported by substantial evidence. Appel-
`lant’s Br. 27–29. Mr. Bebley also argues that his due pro-
`cess rights were violated because the deciding official
`considered new and material information in the form of Mr.
`Bebley’s criminal history set out in ROI Exhibit 21 without
`giving Mr. Bebley notice and an opportunity to respond.
`Appellant’s Br. 14–22. We address each argument in turn.
`I. Mr. Bebley’s Removal
`Mr. Bebley argues that the AJ’s decision sustaining his
`removal is unsupported by substantial evidence because
`the AJ gave too much weight to the credibility of Mr.
`Bebley’s supervisor and other witnesses that testified
`against Mr. Bebley. Appellant’s Br. 28. Mr. Bebley con-
`tends that those witness accounts were less credible than
`his own testimony because of retaliation Mr. Bebley was
`experiencing in response to his past complaints against the
`supervisor. Id. Mr. Bebley further contends that the AJ
`erred by not considering evidence of mitigating circum-
`stances presented by Mr. Bebley. Id. at 29.
`
`

`

`6
`
`BEBLEY v. AIR FORCE
`
`We conclude that substantial evidence supports the
`AJ’s decision to sustain Mr. Bebley’s removal. The AJ
`found that the testimony of Mr. Bebley’s supervisor was
`“credible and persuasive.” App’x 7. The AJ further found
`that the testimony of three of Mr. Bebley’s coworkers “was
`consistent” with the supervisor’s account. App’x 8. The AJ
`found that, by contrast, Mr. Bebley’s testimony was uncor-
`roborated and provided no basis for discrediting the super-
`visor’s testimony. Id. Additionally, the AJ found that Mr.
`Bebley admitted that his conduct was “unprofessional,”
`that his voice was raised, that he used profanity, and that
`he called his supervisor a “coward.” App’x 7, 9. These find-
`ings are sufficient to support Mr. Bebley’s removal. Mr.
`Bebley essentially asks us to reassess the credibility of wit-
`nesses and to reweigh conflicting evidence presented at the
`hearing, but that is not the role of this court. Witness cred-
`ibility determinations are virtually unreviewable on ap-
`peal. Bieber v. Dep’t of Army, 287 F.3d 1358, 1364 (Fed.
`Cir. 2002). We do not reweigh the evidence before the
`Board. McMillan v. Dep’t of Justice, 812 F.3d 1364, 1371
`(Fed. Cir. 2016).
`
`II. Due Process
`Mr. Bebley argues that his procedural due process
`rights were violated by the Air Force’s failure to produce
`ROI Exhibit 21 during his removal proceedings, and by the
`AJ’s failure to reopen the record and reconvene the hearing
`once the Air Force submitted ROI Exhibit 21 into the rec-
`ord. Mr. Bebley contends these purported failures deprived
`him of an opportunity to respond to his criminal history set
`out in ROI Exhibit 21.
`Notice and an opportunity to be heard are fundamental
`requirements of due process. LaChance v. Erickson, 522
`U.S. 262, 266 (1998) (citing Cleveland Bd. of Educ. v.
`Loudermill, 470 U.S. 532, 542 (1985)). The Supreme Court
`has explained that prior to termination, a “tenured public
`employee is entitled to oral or written notice of the charges
`
`

`

`BEBLEY v. AIR FORCE
`
`7
`
`against him, an explanation of the employer’s evidence,
`and an opportunity to present his side of the story.” Id.
`These due process guarantees are undermined if a public
`employee receives notice of only a portion of the employer’s
`evidence, and the deciding official considers new and ma-
`terial information in making his removal decision. Stone,
`179 F.3d at 1376.
`We need not decide whether Mr. Bebley was afforded
`sufficient notice of ROI Exhibit 21 and an opportunity to
`respond to the deciding official about its contents, because
`Mr. Bebley waived his due process argument.
`The record indicates that Mr. Bebley was aware that
`ROI Exhibit 21 contained his criminal history at least as
`early as the filing date of the Air Force’s response to Mr.
`Bebley’s appeal to the Board. See App’x 35–36; S. App’x 1,
`7, 14. Mr. Bebley nonetheless failed to request an unre-
`dacted copy of the ROI with Exhibit 21 until the hearing.
`App’x 2 n.1, 37; S. App’x 26. The record also indicates that
`Mr. Bebley had “ample opportunity” to question the decid-
`ing official during the hearing about what evidence the of-
`ficial considered in his penalty determination, but did not
`do so. App’x 2 n.1. Lastly, Mr. Bebley concedes that after
`the Air Force entered ROI Exhibit 21 into the record sub-
`sequent to the hearing, he failed to request that the AJ re-
`open the hearing to allow Mr. Bebley to question the
`deciding official about whether the official relied on ROI
`Exhibit 21. Appellant’s Supp. Br. 2.
`Mr. Bebley argues that ROI Exhibit 21 was newly dis-
`covered evidence, and his declaration addressing that ex-
`hibit constituted “a de facto request to reopen the record.”
`Id. at 4; Appellant’s Br. 24. Nothing in the declaration,
`however, demonstrates Mr. Bebley’s desire to reopen the
`record to question the deciding official about ROI Ex-
`hibit 21. Rather, Mr. Bebley stated that the purpose of the
`declaration was to address each incident of criminal activ-
`ity described in his criminal history set out in ROI
`
`

`

`8
`
`BEBLEY v. AIR FORCE
`
`Exhibit 21. App’x 45. The AJ considered Mr. Bebley’s dec-
`laration and made it part of the record, which was all the
`AJ was bound to do in this case.
`Mr. Bebley further argues that the AJ should have sua
`sponte reopened the record, pointing to the AJ’s discretion
`to do so in the face of newly discovered evidence. Appel-
`lant’s Br. 26. As Mr. Bebley recognizes, however, that
`power is discretionary. Additionally, Mr. Bebley was on
`notice that the AJ would not sua sponte reopen the record
`to address ROI Exhibit 21, because the AJ already reo-
`pened the record solely for a different purpose: to permit
`the Air Force to submit Mr. Bebley’s response to the decid-
`ing official’s notice of additional information. App’x 52.
`The order reopening the record explicitly stated that “[n]o
`further evidence or argument will be considered unless
`shown to be new and material evidence not available before
`the close of [the] record.” Id. Thus, Mr. Bebley should have
`been aware that the onus was on him to demonstrate that
`ROI Exhibit 21 was new and material evidence and to move
`to reopen the record if he desired to question the deciding
`official about that exhibit. We conclude that on this record,
`the AJ did not abuse her discretion by not reopening the
`hearing or the record.
`
`CONCLUSION
`We have considered Mr. Bebley’s remaining arguments
`and find them unpersuasive. Accordingly, we affirm the
`Board’s decision sustaining Mr. Bebley’s removal.
`AFFIRMED
`COSTS
`
`No costs.
`
`