NOTE: This disposition is nonprecedential.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 Antonio, TX, argued for petitioner. 

 DAVID MICHAEL KERR, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, 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 supported 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 escorted Mr. Bebley out of the supervisor’s office. Mr. Bebley 

continued to be agitated and attempted to return to the supervisor’s office. The supervisor contacted the military 

base police. 

The military police investigated the incident and issued 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 unbecoming a federal employee based on the events described 

above. This notice indicated that the proposing official considered 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 February 15, 2017, the deciding official issued a notice of additional 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 investigative 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 remove 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 redacted version of the ROI. Although the redacted ROI did 

not include Exhibit 21, the redacted ROI referenced Exhibit 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 allegation. Appellee’s Br. 8–9; Appellant’s Br. 18, 21.

At the prehearing conference, Mr. Bebley’s counsel inquired 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 administrative 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 question 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 Exhibit 21 into the record. App’x 36–37; S. App’x 21. The following 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 supplement 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 available before the close of [the] record.” App’x 52.

On May 2, 2018, the AJ issued an initial decision, sustaining Mr. Bebley’s removal. The AJ credited the testimony 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 determined 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 appealed. 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). Additionally, this court will set aside any Board decision inconsistent 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. Appellant’s Br. 27–29. Mr. Bebley also argues that his due process 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 contends 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 circumstances 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 uncorroborated and provided no basis for discrediting the supervisor’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 findings are sufficient to support Mr. Bebley’s removal. Mr. 

Bebley essentially asks us to reassess the credibility of witnesses and to reweigh conflicting evidence presented at the 

hearing, but that is not the role of this court. Witness credibility determinations are virtually unreviewable on appeal. 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 record. 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 material 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 unredacted 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 deciding official during the hearing about what evidence the official 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 subsequent to the hearing, he failed to request that the AJ reopen 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 discovered evidence, and his declaration addressing that exhibit 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 Exhibit 21. Rather, Mr. Bebley stated that the purpose of the 

declaration was to address each incident of criminal activity 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 declaration 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. Appellant’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 reopened the record solely for a different purpose: to permit 

the Air Force to submit Mr. Bebley’s response to the deciding 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.