Braun v. Department of the Navy

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
06-3067
TIMOTHY BRAUN,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
__________________________
DECIDED: August 10, 2006
__________________________
Before MAYER, RADER, and LINN, Circuit Judges.
PER CURIAM.
Timothy Braun appeals the final decision of the Merit Systems Protection Board,
which upheld its initial decision affirming the Department of the Navy’s removal of Braun
from federal employment. Braun v. Dep’t of the Navy, SF0752050100-I-1 (MSPB Sept.
21, 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). 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).
Substantial evidence supports the board’s findings, regardless of Braun’s claim
that some evidence weighs against them. Braun’s testimony itself provides substantial
evidence supporting the May 26, 2004 charges. Substantial evidence, such as Siron
and Thomas’ testimony, also supports the board’s finding that Braun charged excessive
labor hours. Nothing about the board’s credibility determinations suggests that the
deference normally granted to such decisions should be stripped away; they did not
amount to an abuse of discretion and there is no sound reason to disturb them. Finally,
the penalty the agency selected (i.e., removal) was not unwarranted.
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