Lewis v. Dept. Of the Army

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is
not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-3136
TIMOTHY LEWIS,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
__________________________
DECIDED: August 11, 2006
__________________________
Before MAYER, BRYSON, and LINN, Circuit Judges.
PER CURIAM.
Timothy Lewis appeals the final decision of the Merit Systems Protection Board,
which upheld its initial decision affirming the Department of the Army’s removal of Lewis
from federal employment. Lewis v. Dep’t of the Army, DC0752050292-I-1 (MSPB Dec.
5, 2005). We affirm.
We may only reverse a board’s decision if it was arbitrary, capricious, an abuse
of discretion, or unlawful; procedurally deficient; or unsupported by substantial
evidence. See 5 U.S.C. § 7703(c). “[A]n evaluation of witness credibility is within the
discretion of the Board [and is] ‘virtually unreviewable’ on appeal.” King v. Dep’t of
Health & Human Servs., 133 F.3d 1450, 1453 (Fed. Cir. 1998) (citation omitted). Also,
“[g]overnment officials are presumed to carry out their duties in good faith” and the
petitioner has the burden of providing credible evidence to overcome that presumption.
Spezzaferro v. Fed. Aviation Admin., 807 F.2d 169, 173 (Fed. Cir. 1986). We “will not
disturb a choice of penalty within the agency’s discretion unless the severity of the
agency’s action appears totally unwarranted in light of all the factors.” Mings v. Dep’t of
Justice, 813 F.2d 384, 390 (Fed. Cir. 1987).
Crediting the testimonies of O’Neal, Bryant, and Cortes did not amount to an
abuse of discretion by the board; there is no sound reason to disturb the board’s
credibility finding with respect to their testimony. Additionally, the penalty the agency
selected (i.e., removal) was not unwarranted. Finally, the errors Lewis alleges occurred
in the course of the investigation into his behavior are unsupported by the record, and
the agency had no obligation to interview his other co-workers.
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