Michael B. Kearney, Petitioner, v. Department of Transportation, Respondent, 831 F.2d 306 (Fed. Cir. 1987)

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U.S. Court of Appeals for the Federal Circuit - 831 F.2d 306 (Fed. Cir. 1987) September 30, 1987

Before MARKEY, Chief Judge, DAVIS, Circuit Judge, and BALDWIN, Senior Circuit Judge.

PER CURIAM.


DECISION

The decision of the Merit Systems Protection Board (board), Docket No. SE07528610113, sustaining Department of Transportation's (agency's) removal of Michael B. Kearney (Kearney) for abuse of alcohol and failure to meet the medical standards of his position is affirmed.

OPINION

Kearney's attack on the qualification or credibility of the adverse witnesses fail to establish that any of their testimony was 'inherently improbable or discredited by undisputed evidence or physical fact,' Hagmeyer v. Department of the Treasury, 757 F.2d 1281, 1284 (Fed. Cir. 1985), nor did it refute the board's conclusion that accounts of Kearney's speaking voice over radio and telephone are less probative than testimony of people in direct contact with him. We have no reason for overturning the carefully weighed credibility determinations of the administrative judge. Griessenauer v. Department of Energy, 754 F.2d 361, 364 (Fed. Cir. 1985).

Kearney's procedural objections are equally meritless because he has failed to show harmful error. See Cornelius v. Nutt, 472 U.S. 648, 657-59 (1985); Smith v. United States Postal Service, 789 F.2d 1540, 1545-46 (Fed. Cir. 1986). That Kearney's voice appeared normal was accepted; hence availability of the tapes is irrelevant. Kearney fails to establish that 'live' testimony of Mr. West would have made any difference, especially in light of West's affidavit and the 'live' testimony of West's wife to the same facts.

On the charge of failure to meet medical standards for the position of Air Traffic Control Specialist, Kearney's main argument (that the agency failed to follow its own regulations requiring a clinical diagnosis of alcoholism or alcohol abuse before placement in its 'special considerations' program) is baseless. The evaluations of the state licensed evaluator, the staff at the New Hope Center, and Dr. Stoner fully satisfy the agency procedure. Mr. Kearney's attempts to disqualify the state examiner are equally baseless.

We have considered Kearney's due process, fair warning, nexus, and appropriate penalty arguments. None is adequately supported in the evidence.

We affirm on the basis of the board's opinion because we do not find the decision arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or obtained without procedures required by law, rule, or regulation having been followed, or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1982); see Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).