Marsha Twyman v. M. JOHN BERRY, Director, Office of Personnel Management

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1059
MARSHA TWYMAN,
Plaintiff – Appellant,
v.
M. JOHN BERRY, Director, Office of Personnel Management;
UNITED STATES OFFICE OF PERSONNEL MANAGEMENT,
Defendants – Appellees.
No. 10-1064
PEDRO GARCIA,
Plaintiff – Appellant,
v.
M. JOHN BERRY, Director, Office of Personnel Management;
UNITED STATES OFFICE OF PERSONNEL MANAGEMENT,
Defendants – Appellees.
Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:08-cv-00519-RGD-FBS; 2:09-cv-00262-RGD-FBS)
Submitted: September 7, 2011 Decided: September 27, 2011

-- 1 of 5 --

2
Before TRAXLER, Chief Judge, and SHEDD and KEENAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
James H. Shoemaker, Jr., PATTEN, WORNOM, HATTEN & DIAMONSTEIN,
LC, Newport News, Virginia, for Appellants. Neil MacBride,
United States Attorney, Alexandria, Virginia; Kent P. Porter,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.

-- 2 of 5 --

3
PER CURIAM:
Marsha Twyman and Pedro Garcia are former employees of the
United States Office of Personnel Management (“OPM”) who were
terminated from their employment for failing to meet certain
performance standards. After unsuccessfully challenging their
terminations before a Merit Systems Protection Board (“Board”)
administrative judge, Twyman and Garcia filed these actions in
the district court seeking judicial review. Finding no reason
to overturn the Board’s decision, the district court entered
summary judgment in OPM’s favor and dismissed the cases. We
affirm.1
On appeal, Twyman and Garcia primarily argue that the Board
erred in upholding their terminations because OPM failed to meet
its burden of proving that the applicable performance standards
1 The administrative judge’s decision is the final decision
of the Board, and our jurisdiction over these appeals arises
under 28 U.S.C. § 1291. In the proceedings below, Twyman and
Garcia also asserted discrimination claims, but they voluntarily
dismissed those claims before the district court granted summary
judgment. Our jurisdiction is not affected by the dismissal of
the discrimination claims. See Afifi v. U.S. Dept. of Interior,
924 F.2d 61 (4th Cir. 1991) (discussing the jurisdictional
issues arising in appeals from the Board and holding that in a
mixed case involving a good-faith discrimination claim and a
nondiscrimination claim, the district court does not lose
jurisdiction over the nondiscrimination claim when the
discrimination claim is disposed of); see also Porsche Cars
N.A., Inc. v. Porsche.net, 302 F.3d 248, 255 (4th Cir. 2002)
(noting that there is “no support for the . . . proposition that
the conditions that create subject-matter jurisdiction must
necessarily persist throughout the life of a case”).

-- 3 of 5 --

4
were “valid.” Under the controlling law, performance standards
are valid if, to the maximum extent feasible, they permit the
accurate appraisal of performance based on objective criteria,
and if they “are reasonable, realistic, attainable and clearly
stated in writing.” Walker v. Dept. of Treas., 28 M.S.P.R. 227,
229 (1985). Employees cannot be terminated based on a
performance standard that requires them to achieve an
unreasonably high level of performance. Boyd v. Dept. of Navy,
88 M.S.P.R. 435, 439 (2001). Stated succinctly, Twyman and
Garcia contend that the performance standards were invalid
because they were unattainable without working uncompensated
overtime hours.
Our appellate review is limited to whether the Board’s
decision constitutes an abuse of discretion, is arbitrary and
capricious or otherwise not in accordance of law, or is
unsupported by substantial evidence. See Hooven-Lewis v.
Caldera, 249 F.3d 259, 265-66 (4th Cir. 2001) (citing 5 U.S.C.
§ 7703(c)). In this regard, we are not at liberty to substitute
our judgment for that of the Board, and our role “is only to
ascertain if the Board has met the minimum standards set forth
in the statute.” U.S.P.S. v. Gregory, 534 U.S. 1, 7 (2001).
Twyman and Garcia bear the burden in these appeals of
establishing error. Harris v. Dept. of Vet. Aff., 142 F.3d
1463, 1467 (Fed. Cir. 1998).

-- 4 of 5 --

5
The administrative judge thoroughly detailed the evidence
presented at the administrative hearing. Regarding the validity
of the performance standards, the judge found, among other
things, that “a number of agents demonstrated their ability to
perform their job duties within the regular work hours and,
thus, there was sufficient evidence to conclude that the
standards could be met within the regular . . . work week.”
J.A. 750. Applying the deferential standards applicable to our
review of this decision, and based on the evidence contained in
the administrative record, we hold that the decision cannot
reasonably be said to be arbitrary and capricious, an abuse of
discretion or otherwise not in accordance with law, or
unsupported by substantial evidence.2
Accordingly, we affirm the summary judgments. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
2 Twyman and Garcia also contend that the decisions to
terminate them were arrived at through “harmful procedural
error.” We find no merit to this contention.

-- 5 of 5 --