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899 F2d 1228 Melnick v. Department of Housing and Urban Development

899 F.2d 1228

Evelyn B. MELNICK, Petitioner,
v.
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Respondent.

No. 90-3067.

United States Court of Appeals, Federal Circuit.

March 23, 1990.

Unpublished Disposition
NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

Before MARKEY, Chief Judge, PAULINE NEWMAN, Circuit Judge, and JOHN C. LIFLAND,* District Judge.

PAULINE NEWMAN, Circuit Judge.

DECISION

1

The decision of the Merit Systems Protection Board, Docket No. DE04328810211, sustaining the Department of Housing and Urban Development's (HUD) removal of petitioner for unacceptable performance of her duties, is affirmed.

OPINION

2

The scope of review of Board decisions is limited by statute. The Board's decision must be affirmed unless it is arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, obtained without procedures required by law, or unsupported by substantial evidence. 5 U.S.C. Sec. 7703(c); Covington v. Department of Health and Human Services, 750 F.2d 937, 941 (Fed.Cir.1984).

3

In its decision the Board found, inter alia, that the performance standard was valid for the non-routine special tasks component of a critical element of Ms. Melnick's position, that HUD proved that Ms. Melnick performed unacceptably under that standard, and that her removal was therefore warranted. The Board also concluded that Ms. Melnick failed to substantiate her allegations of harmful procedural error.

4

While there was conflicting testimony, we conclude that there was substantial evidence to support the Board's decision. The decision is not arbitrary, capricious, or an abuse of discretion, or obtained without procedures required by the applicable law.

*

The Honorable John C. Lifland, United States District Court for the District of New Jersey, sitting by designation pursuant to 28 U.S.C. Sec. 293(a)