Marcus L. Swearengen v. Department of the Army

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARCUS L. SWEARENGEN,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2024-2050
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0752-20-0450-I-2.
______________________
Decided: January 23, 2026
______________________
D ANIEL J. G AMINO, Daniel J. Gamino & Associates,
PC, Oklahoma City, OK, argued for petitioner.
L AURA O FFENBACHER ARADI, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent. Also
represented by ALBERT S. I AROSSI, P ATRICIA M.
MCCARTHY , BRETT SHUMATE.
______________________
Case: 24-2050 Document: 42 Page: 1 Filed: 01/23/2026

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SWEARENGEN v. ARMY 2
Before M OORE, Chief Judge, D YK and T ARANTO, Circuit
Judges.
D YK, Circuit Judge.
Marcus C. Swearengen was removed from his civilian
position by the Army (“the Agency”) based on two charges:
inappropriate remarks and creating a disruption in the
workplace. The Merit Systems Protection Board (the
“Board”) reversed as to the first charge, sustained the
second charge, and modified Mr. Swearengen’s removal to
a demotion. Mr. Swearengen petitions for review. We
conclude that the remaining charge of causing a disturb-
ance in the workplace is unsupported by substantial
evidence and reverse.
BACKGROUND
Mr. Swearengen was employed by the Army as an
Electronics Mechanic Leader for the US Army Aviation
and Missile Command, Aviation Center Logistic Com-
mand Missile and Fire Division in Fort Rucker, Alabama
with duty in Fort Sill, Oklahoma. Mr. Swearengen’s role
was a position of leadership because he was responsible
for relaying and enforcing supervisory instructions to
subordinate employees. On April 27, 2020, the Agency
issued Mr. Swearengen a notice of proposed removal for
two charges: inappropriate remarks and creating a dis-
ruption in the workplace. To support the first charge, the
Agency described an incident where Mr. Swearengen
allegedly called another employee, Sylvester Boyd, “‘stu-
pid’ repeatedly in a loud, elevated voice” and “continued to
yell at Mr. Boyd.” J.A. 68.1 To support the second charge,
the Agency alleged that “[o]n 12 March 2020, as
[Mr. Swearengen] called Mr. Boyd ‘stupid’ repeatedly in a
loud, elevated voice and continued to yell at Mr. Boyd in
1 Citations to the J.A. refer to the Joint Appendix
filed by the parties in No. 24-2050. Dkt. No. 21.
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SWEARENGEN v. ARMY 3
the bay area, other employees heard [Mr. Swearengen]
making a disruption in the workplace as they exited the
bay area.” Id.
On June 23, 2020, the deciding official determined
that Mr. Swearengen should be removed from Federal
Service based on both charges, without elaborating on the
charges in the notice of proposed removal.
Mr. Swearengen appealed his removal to the Board and
his case was assigned to an administrative judge (“AJ”).
On July 1, 2022, after a hearing, the AJ issued an ini-
tial decision sustaining Mr. Swearengen’s removal on
both charges. The AJ found “[Mr.] Boyd to be more credi-
ble when describing the incident” than Mr. Swearengen.
J.A. 4030. Based predominantly on Mr. Boyd’s testimony,
the AJ concluded that Mr. Swearengen “made inappropri-
ate remarks when he called Boyd ‘stupid’” and that his
“actions created noticeable noise in the workplace and . . .
had an effect on the atmosphere of the workplace.” Id.
Mr. Swearengen petitioned the Board for review.
On May 9, 2024, the Board reversed the initial deci-
sion with respect to the first charge, affirmed the initial
decision with respect to the second charge, and mitigated
Mr. Swearengen’s removal to a demotion. As to the first
charge, inappropriate remarks, the Board determined
“there [were] sufficiently sound reasons to overturn the
[AJ’s] determination that [Mr. Boyd] was more credible
than [Mr. Swearengen].” J.A. 6. It noted the lack of
witnesses to corroborate Mr. Boyd’s testimony, and that
Mr. Boyd had reasons to harbor malice towards
Mr. Swearengen and “be less than candid in his testimony
regarding [Mr. Swearengen.]” J.A. 7. Accordingly, the
Board concluded that “only [Mr. Boyd] testified that
[Mr. Swearengen] called him ‘stupid’” and because “[it
did] not find [Mr. Boyd’s] testimony alone to be sufficient-
ly persuasive to meet the preponderant evidence stand-
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SWEARENGEN v. ARMY 4
ard . . . [it found] that the agency failed to prove its first
charge.” Id.
As to the second charge, creating a disruption in the
workplace, the Board affirmed the initial decision’s con-
clusion that the Agency proved this charge by a prepon-
derance of the evidence. Despite the Board’s conclusion
that aspects of the second charge were not supported (the
allegation that Mr. Swearengen called Mr. Boyd stupid) it
concluded that the charge should be sustained because
Mr. Swearengen created a disruption in the workplace
and this charge “more broadly alleges that
[Mr. Swearengen] spoke in a ‘loud, elevated voice and
continued to yell’ at [Mr. Boyd], and that other employees
heard the disruption.” Id. n. 5.2 (quoting the notice of
proposed removal, which is referring to Mr. Boyd’s writ-
ten statement). The Board relied on the testimony of two
employees, Mr. Jenkins and Mr. Farmer, as sufficient to
support the charge. The Board determined that “there is
corroborating evidence establishing that [Mr. Boyd] and
[Mr. Swearengen] engaged in a loud exchange that ‘creat-
ed noticeable noise’ which was overheard by other em-
ployees.” J.A. 7.
Mr. Swearengen timely petitions for review. We have
jurisdiction under 28 U.S.C. § 1295(a)(9).
2 While Mr. Swearengen does not make this argu-
ment, we note that the Board’s decision as to the second
charge of creating a disruption in the workplace may run
afoul of our holding in Do v. Dep’t of Hous. & Urb. Dev.,
913 F.3d 1089, 1096–97 (Fed. Cir. 2019) because “[t]he
Board’s decision [was] inconsistent with the agency’s
charge and supporting specifications” and “the Board was
required to limit its review to the grounds specified in the
notice and relied on by the deciding official.”
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SWEARENGEN v. ARMY 5
D ISCUSSION
We set aside the decision of the Board if it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c); accord Haebe v. Dep’t of Just.,
288 F.3d 1288, 1298 (Fed. Cir. 2002). “Substantial evi-
dence is ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’”
Brenner v. Dep’t of Veterans Affs., 990 F.3d 1313, 1322
(Fed. Cir. 2021) (quoting Shapiro v. Soc. Sec. Admin.,
800 F.3d 1332, 1336 (Fed. Cir. 2015)).
Mr. Swearengen argues that substantial evidence
does not support the Board’s finding that he created a
workplace disruption. Specifically, he argues that
“Mr. Boyd admitted . . . there was in fact no ‘disruption’ in
the workplace,” by testifying that it was “[n]othing more
than normal,” Pet’r’s Br. 13, and that the testimony of
Mr. Farmer and Mr. Jenkins does not support the Board,
id. at 13–16; Pet’r’s Reply Br. 11. In response, the gov-
ernment acknowledges that Mr. Boyd’s testimony does
not support the charge, and that the Board did not rely on
Mr. Boyd’s testimony.3 Nonetheless the government
argues that three pieces of evidence support the charge:
Mr. Farmer’s written statement, Mr. Jenkins’s written
statement, and Mr. Jenkins’s hearing testimony.
3 To the extent that the Board may have relied on
Mr. Boyd to support the allegation that Mr. Swearengen
created noise, crediting Mr. Boyd’s testimony would be
inconsistent with the Board’s finding that Mr. Boyd was
not credible.
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SWEARENGEN v. ARMY 6
We conclude that, contrary to the Board’s final order,
there is not substantial evidence that Mr. Swearengen’s
actions created a disruption in the workplace.
First, Mr. Farmer’s written statement does not pro-
vide substantial evidence to support that Mr. Swearengen
spoke in a loud voice or that Mr. Swearengen created a
disruption. The written statement states in full:
I was in my office at the time of the incident in-
volving Mr. Swearengen and Mr. Boyd. I heard
some noise coming from the bay but Myself along
with Mr. Jenkins and Mr. Guiden was headed out
the back door to talk with Mr. Green. I did not
hear the conversation involving that incident.
J.A. 295. Mr. Farmer’s written statement only says
that he heard “noise”—he did not testify that he heard a
loud noise, that this noise was caused by Mr. Swearengen,
or that the noise created a disturbance. In fact, the last
sentence from Mr. Farmer’s statement, specifying that he
“did not hear the conversation,” appears to contradict the
government’s argument that Mr. Swearengen made a
loud, disruptive noise by yelling at Mr. Boyd.
Mr. Farmer’s statement does not provide substantial
evidence to support that Mr. Swearengen created a dis-
ruption in the workplace.
Second, Mr. Jenkins’s written statement does not pro-
vide substantial evidence to support the Board’s finding.
Mr. Jenkins did not state that Mr. Swearengen made a
loud, disruptive noise. Indeed, in his written statement,
Mr. Jenkins stated only that he “did not hear the conver-
sation between [Mr. Boyd and Mr. Swearengen]” due to
his location.” J.A. 297.
Third, at the hearing, Mr. Jenkins testified that the
incident between Mr. Boyd and Mr. Swearengen “dis-
turb[ed] his work” because “the shop had been working in
a toxic environment for quite a long time” and that the
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SWEARENGEN v. ARMY 7
incident “hindered further operations.” J.A. 3723 l. 23–
3724 l. 8. While Mr. Jenkins testified that someone said
“[h]ey, someone come here[,] [s]omething’s going on,” and
that he went to see “what the commotion was” and found
out “Mr. Swearengen and Mr. Boyd had words with one
another,” he did not testify that Mr. Swearengen spoke in
a loud voice or created a disturbance. J.A. 3737–38. His
testimony accordingly does not provide substantial evi-
dence for the Board’s determination.
Because there is no substantial evidence to support
the Board’s decision, we reverse and do not reach
Mr. Swearengen’s remaining arguments.
REVERSED
COSTS
Costs to Mr. Swearengen.
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