NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

FRANK LICARI,

Petitioner

v.

DEPARTMENT OF TRANSPORTATION,

Respondent

______________________ 

2017-1470

______________________ 

Petition for review of an arbitrator’s decision in No. 

FMCS 16-55055A by Laurence M. Evans.

______________________ 

Decided: August 11, 2017

______________________ 

 FRANK LICARI, Burke, VA, pro se.

MARGARET JANTZEN, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, for respondent. Also represented by 

CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., ELIZABETH 

M. HOSFORD; CHARLES EDWARD LOHMEYER, Department of 

Transportation, Washington, DC.

______________________ 

Before LOURIE, REYNA, and HUGHES, Circuit Judges.
2 LICARI v. DEPARTMENT OF TRANSPORTATION

PER CURIAM. 

Frank Licari appeals from an arbitration decision affirming his dismissal from federal employment. Because 

substantial evidence supports the arbitrator’s decision, we 

affirm. 

BACKGROUND

1. Mr. Licari’s Removal 

Mr. Licari worked for the United States Department 

of Transportation (“agency”) from 2004 until his removal

in March 2016. At the time of his removal, Mr. Licari was 

a senior transportation analyst for a division of the agency responsible for reviewing and approving oil spill response plans. 

During his tenure at the agency, Mr. Licari was subject to annual performance appraisals. A July 2015

appraisal of Mr. Licari’s 2014–2015 performance resulted 

in an “unacceptable” rating in three job elements. See

S.A. 93, 95–96. The only job element relevant to this 

appeal is Critical Element 4, which states that employees 

must “perform[] reviews of onshore pipeline oil spill 

response plans . . . [and] accurately follow[] review guidelines 85% of the time.” S.A. 19, 96. Each response plan 

required Mr. Licari to review oil operators’ answers to 38 

questions. Mr. Licari accurately reviewed several of the 

38 questions less than 85% of the time. For example, he

correctly reviewed Question 16 only 33% of the time. S.A. 

20.1

In September 2015, the agency placed Mr. Licari on a 

Performance Improvement Plan (“PIP”) and issued a 

1 The arbitrator set aside the agency’s determination that Mr. Licari’s performance as to Critical Element 

3 was unacceptable. S.A. 18. That decision is not before 

us on appeal.

 
LICARI v. DEPARTMENT OF TRANSPORTATION 3

memorandum explaining how he needed to improve his 

performance. S.A. 101–05. The memorandum allowed 

Mr. Licari 90 days “to demonstrate acceptable performance,” assigned him a mentor, and set regular check-in 

meetings. S.A. 104. The memorandum further specified 

that Mr. Licari would meet biweekly with his supervisor, 

David Lehman, to discuss his progress. Id. 

At the conclusion of the 90-day period, the agency notified Mr. Licari that he failed to improve to an acceptable 

level of performance. S.A. 106. Based on his failure to 

improve, the agency sent Mr. Licari a Notice of Proposed 

Removal in January 2016. Mr. Licari, represented by his

union, challenged the Notice of Proposed Removal and 

filed a Step 3 Grievance. The agency issued its decision to 

remove Mr. Licari and denied Mr. Licari’s Step 3 Grievance. The agency noted that if Mr. Licari was unsatisfied, 

he could proceed to arbitration through his union. S.A. 

182.

2. Arbitration

Mr. Licari elected to pursue arbitration. In August 

2016, the arbitrator heard the testimony of six witnesses 

and received 21 exhibits. After post-trial briefing, the 

arbitrator rendered a decision that substantial evidence 

supported the agency’s finding that Mr. Licari performed 

unacceptably as to Critical Element 4 and that just cause 

existed for Mr. Licari’s removal. The arbitrator summarized the requirements for acceptable performance of 

Critical Element 4, including the accurate review of 38 

questions. The agency provided unrebutted testimony 

that Question 16 was the most significant. The arbitrator 

found Mr. Licari’s failure rate of 67% on Question 16 to be

“startling.” S.A. 20. He also noted that Mr. Licari accurately answered several other questions below the 85% 

threshold.

The arbitrator made credibility determinations about 

Mr. Lehman’s testimony, stating that he had “no basis to 
4 LICARI v. DEPARTMENT OF TRANSPORTATION

question Supervisor Lehman’s credibility or good faith” in 

determining that Mr. Licari failed Critical Element 4. Id. 

“As between the testimony of Supervisor Lehman and the 

Grievant,” the arbitrator wrote, “I find Lehman’s testimony to be more reliable, accurate and trustworthy, and I 

therefore credit his version of events with regard to 

Critical Element 4 and its related performance standard.” 

S.A. 21. The arbitrator noted that Mr. Licari “had to 

recant certain testimony due to ‘confusion’ and start 

over,” and that Mr. Licari provided no witness testimony 

to “undermine Lehman’s testimony in any respect.” Id. 

Based on these findings, the arbitrator concluded that 

“the Agency, by ‘substantial evidence,’ has proven that the 

Grievant’s work performance, during the term of his PIP, 

was unacceptable under Critical Element 4 and its related 

performance standard.” S.A. 22.

Mr. Licari appeals. We have jurisdiction pursuant to 

5 U.S.C. §§ 7121(f) and 7703.

DISCUSSION

We review an appeal from an arbitration decision using the same standards as an appeal from a decision of 

the Merit Systems Protection Board. 5 U.S.C. § 7121(f); 

Norris v. SEC, 675 F.3d 1349, 1352–53 (Fed. Cir. 2012). 

By statute, we may set aside an arbitration decision only 

if it is arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law; obtained in violation of 

law, rule, or regulation; or unsupported by substantial 

evidence. 5 U.S.C. § 7703(c). We review questions of law 

de novo and questions of fact for substantial evidence. 

See Wrocklage v. Dep’t of Homeland Sec., 769 F.3d 1363, 

1366 (Fed. Cir. 2014). Substantial evidence is “such 

relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion.” McLaughlin v. Office 

of Pers. Mgmt., 353 F.3d 1363, 1369 (Fed. Cir. 2004). 

Credibility determinations, however, are “virtually unreviewable” and are almost never overturned absent con-
LICARI v. DEPARTMENT OF TRANSPORTATION 5

tradictory extrinsic evidence. Hambsch v. Dep’t of the 

Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986). The burden 

of proving reversible error rests on Mr. Licari. See 

Pucilowski v. Dep’t of Justice, 498 F.3d 1341, 1344 (Fed. 

Cir. 2007).

Mr. Licari appears to raise four primary arguments

on appeal. First, he contends that the arbitrator erred in 

determining that Mr. Lehman was more credible than 

Mr. Licari. The Board (or in this case, the arbitrator) 

resolves credibility disputes by (1) identifying the disputed facts; (2) summarizing the evidence; (3) identifying 

which version he believes; and (4) explaining why one 

version was more credible than the other. Hillen v. Dep’t 

of the Army, 35 M.S.P.R. 453, 458 (1987). The arbitrator 

acknowledged his obligation to follow Hillen, S.A. 21 n.17, 

and we find no error in the arbitrator’s credibility determination. The arbitrator first identified Critical Element 

4 as the issue in dispute. He also summarized both sides’ 

evidence, stated that he believed Mr. Lehman’s version to 

be more credible, and explained why. For example, the 

arbitrator noted that no witnesses contradicted 

Mr. Lehman “in any respect,” and that Mr. Licari had to 

recant some of his testimony. S.A. 21. In light of the 

proper application of Hillen and the lack of contrary 

extrinsic evidence, we have no difficulty upholding the 

arbitrator’s determination that Mr. Lehman’s testimony 

was credible. Hambsch, 796 F.2d at 436.

Second, Mr. Licari alleges that the agency applied an 

incorrect, retroactive methodology to determine that he 

failed to adequately perform Critical Element 4. Critical 

Element 4 requires employees to review answers to 38 

regulatory questions with 85% accuracy. Mr. Lehman 

testified that prior to his becoming director in 2013, an 

employee could consistently miss the same question but 

still satisfy the 85% benchmark by correctly reviewing 

other questions. S.A. 201. Because each question represented a regulatory requirement, Mr. Lehman was con-
6 LICARI v. DEPARTMENT OF TRANSPORTATION

cerned that employees could consistently review individual questions inaccurately. He therefore began requiring 

each question to be reviewed correctly 85% of the time. 

S.A. 19, 201–02. Mr. Lehman testified that he explained 

the new review methodology to his employees at two staff 

meetings. S.A. 202. He also testified that he coached his 

employees on the methodology during the “communication 

timeframe,” which was the beginning of the upcoming 

appraisal period. S.A. 210, 234. Mr. Licari confirmed 

that he spoke with Mr. Lehman about the changes. S.A. 

226, 234. 

We do not agree with Mr. Licari that the review 

methodology was flawed. A Senate Report notes that 

agencies have “‘great flexibility’” in choosing and developing their own review systems. Gillebeau v. Dep’t of the 

Navy, 362 F.3d 1329, 1336 (Fed. Cir. 2004) (quoting S. 

Rep. No. 95-969, at 42, reprinted in 1978 U.S.C.C.A.N. at 

2764). We have previously concluded that Congress 

“intend[ed] to permit government agencies latitude in 

crafting performance appraisal systems to fit their needs.” 

Id. at 1337. The arbitrator explained that the agency’s oil 

spill response plans were so significant that the 85% 

accuracy threshold was not “unduly strict.” S.A. 19 n.13. 

Given the potential environmental and economic effects of 

oil spills, we agree. Mr. Licari presents no other persuasive arguments against the merits of the appraisal criteria. 

We also reject Mr. Licari’s argument that the appraisal criteria were retroactively applied to him. When 

the change went into effect, Mr. Licari notified 

Mr. Lehman that he disagreed with “the whole plan,” S.A. 

234, and signed the July 31, 2014 performance plan “in 

disagreement,” S.A. 92. The fact that Mr. Licari documented his disagreement in July 2014—a full year before 

his July 2015 performance appraisal—indicates that the 

new standards were not applied retroactively. We discern 

nothing from the record that Mr. Licari was unaware of 
LICARI v. DEPARTMENT OF TRANSPORTATION 7

how he would be evaluated for the 2014–2015 appraisal 

period. We conclude the methodology was not retroactively applied. 

Third, Mr. Licari faults the arbitrator for not considering what he calls prior “exceptional performance appraisals.” The record indicates, however, that the 

arbitrator received Mr. Licari’s past performance appraisals dating back to 2009. S.A. 224. The arbitrator 

acknowledged the union’s position that Mr. Licari “was an 

‘outstanding performer’ until he came under the supervision of David Lehman in late 2013.” S.A. 11. But an 

agency cannot decide to remove an employee based on 

unacceptable performance that occurred more than a year 

before the notice of proposed removal. 5 U.S.C. 

§ 4304(c)(2). We note that § 4303(c)(2) does not prohibit 

the arbitrator from considering past acceptable performance. Given the prohibition on considering unacceptable performance more than one year old, however, we do 

not fault the arbitrator for not focusing on acceptable

conduct prior to 2014. We see no requirement, statutory 

or otherwise, that an arbitrator must consider acceptable 

performance that occurred more than one year before the 

notice of proposed removal. And at any rate, the arbitrator had before him records of Mr. Licari’s past acceptable 

behavior for the past several years.

Fourth, Mr. Licari alleges that the arbitrator was biased against him. Specifically, he argues that both parties made the arbitrator aware of a medical condition that 

could cause Mr. Licari to interrupt the proceeding, but 

that the arbitrator “incorrectly interpreted [his] medical 

problems, as being a difficult witness that was uncooperative.” Informal Br. at 9. Mr. Licari also alleges that 

certain passages of the arbitration decision exemplify the 

arbitrator’s bias. 

The government disagrees, citing Bieber 

v. Department of the Army, 287 F.3d 1358 (Fed. Cir. 
8 LICARI v. DEPARTMENT OF TRANSPORTATION

2002). In Bieber, the appellant did not file a motion for 

recusal with the administrative judge (“AJ”). Id. at 1361. 

Instead, like here, the appellant complained of bias for 

the first time on appeal. Id. We explained that in applying the federal judicial recusal statute, 28 U.S.C. § 455, 

the Supreme Court requires a showing of “‘deepseated . . . antagonism’ toward a party.” Id. at 1362 

(quoting Liteky v. United States, 510 U.S. 540, 555 

(1994)). Though the appellant in Bieber sought a new 

hearing instead of recusal, we applied the recusal standard from Liteky. Id. Based on that standard, we determined that although some of the AJ’s comments were 

inappropriate, they did not to rise to the level of due 

process-depriving bias. Id. at 1362. In a subsequent case, 

an appellant alleged bias because an administrative judge 

told her to either settle her case or face dismissal. Atanus 

v. MSPB, 434 F.3d 1324, 1327 (Fed. Cir. 2006). Even 

accepting the appellant’s version of the facts, we found 

that such a statement “does not establish that the judge 

had a ‘deep-seated favoritism or antagonism that would 

make fair judgment impossible.’” Id. (quoting Bieber, 287 

F.3d at 1362).

We find that the arbitrator’s conduct does not demonstrate a deep-seated antagonism against Mr. Licari, and 

thus did not deprive him of due process. Mr. Licari makes 

only generalized allegations about the arbitrator’s conduct 

during the trial but does not cite to specific statements 

that demonstrate bias. He also points to two passages in 

the arbitration decision: “I have no basis to question 

Supervisor Lehman’s credibility or good faith” and “No 

one came forward to undermine Lehman’s testimony in 

any respect.” S.A. 20–21. While Mr. Licari may disagree 

with the arbitrator’s credibility determinations, they do 

not show any, let alone deep-seated, antagonism toward 

Mr. Licari. An adverse credibility determination is not 

equivalent to improper bias.
LICARI v. DEPARTMENT OF TRANSPORTATION 9

CONCLUSION

We have considered the remainder of Mr. Licari’s arguments and find them to be unpersuasive. Substantial 

evidence supports the arbitrator’s decision to uphold 

Mr. Licari’s removal based on Critical Element 4. We 

therefore affirm the arbitration decision.

AFFIRMED

COSTS

No costs.