Oleg Oleinic v. Department of the Air Force

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
OLEG OLEINIC,
Petitioner
v.
DEPARTMENT OF THE AIR FORCE,
Respondent
______________________
2024-2272
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-23-0393-I-2.
______________________
Decided: July 16, 2025
______________________
O LEG O LEINIC, Ashburn, VA, pro se.
MATTHEW J UDE CARHART , Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by ELIZABETH MARIE HOSFORD, P ATRICIA M.
MCCARTHY , YAAKOV R OTH .
______________________
P ER CURIAM .
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OLEINIC v. AIR FORCE 2
Oleg Oleinic petitions for review of a final order by the
Merit Systems Protection Board (“Board”) that sustained
his removal from employment with the Department of the
Air Force (“agency”). For the following reasons, we affirm.
BACKGROUND
At the time of Mr. Oleinic’s removal, he was employed
as a Foreign Affairs Specialist in the agency’s Treaty
Compliance Office. S.A. 2.1 On January 31, 2023, the
agency notified Mr. Oleinic that it was proposing to
remove him based on two charges: (1) Absence without
Leave (“AWOL”) and (2) Conduct Unbecoming a Federal
Employee. S.A. 75. As to the first, the agency charged
Mr. Oleinic with being AWOL for about five-and-a-half
months due to his failure to provide medical documenta-
tion to support his request for leave under the Family and
Medical Leave Act of 1993 (“FMLA”). S.A. 2. As to the
second charge, the agency listed five specifications relat-
ing to financial impropriety and other misconduct. S.A.
2–4. After Mr. Oleinic responded to the notice of proposed
removal, the agency issued a Notice of Decision to Remove
citing both charges and removing Mr. Oleinic from em-
ployment effective April 2, 2023. S.A. 81–82. Mr. Oleinic
appealed the decision to the Board.
In its initial decision, the administrative judge (“AJ”)
sustained both charges on all specifications. S.A. 27–41.
The AJ found that the agency had given due process by
providing Mr. Oleinic with notice and an opportunity to
respond. S.A. 41–44. The AJ also rejected Mr. Oleinic’s
affirmative defenses. S.A. 45–57. Analyzing the factors
set forth in Douglas v. Veterans Admin., 5 M.S.P.B. 313
(1981), the AJ found that the agency had established a
nexus between its charges and the efficiency of the ser-
1 “S.A.” refers to the supplemental appendix includ-
ed with the government’s informal brief.
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OLEINIC v. AIR FORCE 3
vice, and that the penalty was reasonable and promoted
the efficiency of the service. S.A. 57–62.
The AJ’s initial decision became the Board’s final de-
cision on June 26, 2024. S.A. 62. Mr. Oleinic now peti-
tions for review of the Board’s decision. We have
jurisdiction under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
The scope of our review of Board decisions is limited
by statute. We must affirm the Board’s decision unless
we find that it is “(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.” See 5 U.S.C. § 7703(c); Holland v.
Dep’t of Air Force, 31 F.3d 1118, 1120 (Fed. Cir. 1994).
“The petitioner bears the burden of establishing error in
the Board’s decision.” Harris v. Dep’t of Veterans Affs.,
142 F.3d 1463, 1467 (Fed. Cir. 1998).
Mr. Oleinic appears to primarily contend that the AJ
abused her discretion in denying Mr. Oleinic’s requests to
postpone the Board hearing and “clos[ing] the record”
before he could “properly format” his submissions and
refute the agency’s charges. Pet’r’s Informal Br. 13.2 We
disagree. Mr. Oleinic has failed to demonstrate that the
AJ committed an abuse of discretion as to these procedur-
al and evidentiary matters. See Spezzaferro v. Fed. Avia-
tion Admin., 807 F.2d 169, 173 (Fed. Cir. 1986). The
record before the Board reflects numerous adjustments to
deadlines for Mr. Oleinic’s benefit and ample opportuni-
ties provided to Mr. Oleinic to submit his filings. S.A. 12–
18. Despite the AJ finding Mr. Oleinic failed to establish
good cause to waive the deadline for filing prehearing
submissions, the AJ reopened the record and allowed
2 We cite to the ECF page numbers.
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OLEINIC v. AIR FORCE 4
Mr. Oleinic to provide additional documentation attempt-
ing to refute the AWOL charge. S.A. 16–17. The AJ also
considered Mr. Oleinic’s submissions and found that, even
assuming Mr. Oleinic had been entitled to the full amount
of FMLA leave requested, his absence was longer than his
potential leave total, leaving a shortfall of time for which
he was not excused.3
Mr. Oleinic also alleges that his due process rights
were violated during the agency’s removal process and
before the Board. Pet’r’s Informal Br. 3–9, 15–16, 20–21.
We disagree. Mr. Oleinic does not direct us to anything in
the record supporting this claim. The agency provided
Mr. Oleinic with a notice of proposed removal, to which
Mr. Oleinic responded with a lengthy email. S.A. 43.
While Mr. Oleinic may have requested an extension in
addition to addressing the merits of his proposed removal,
he never responded to the agency’s request for why he
needed an extension and did nothing to supplement his
initial email in the interim. S.A. 11, 43–44. Thus, the AJ
found that Mr. Oleinic was afforded a reasonable oppor-
tunity to respond to the agency’s proposed removal suffi-
cient to satisfy his due process rights. S.A. 41–44. And as
discussed above, the AJ provided numerous opportunities
for Mr. Oleinic to be heard during the Board proceedings.
Further, Mr. Oleinic makes no cognizable challenge to
the AJ’s finding that the agency proved each of the five
specifications of Conduct Unbecoming a Federal Employ-
ee by preponderant evidence. Mr. Oleinic alleges, without
support, that the agency “fabricated evidence” such as a
false police report regarding the rental car Mr. Oleinic
failed to return, Informal Reply Br. 6, but the AJ already
considered the evidence in this case and found the agency
3 To be clear, the AJ found Mr. Oleinic “was not en-
titled to FMLA leave.” S.A. 27. Mr. Oleinic does not
allege error in this finding.
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OLEINIC v. AIR FORCE 5
proved its charges. See, e.g., S.A. 40–41. Under the
substantial evidence standard of review, we “do[ ] not
reweigh evidence on appeal.” In re NTP, Inc., 654 F.3d
1279, 1292 (Fed. Cir. 2011).
CONCLUSION
We have considered Mr. Oleinic’s remaining argu-
ments and find them unpersuasive. For the foregoing
reasons, we affirm.
AFFIRMED
COSTS
No costs.
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