                     NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                     2007-3001



                                STEVEN F. GADDY,

                                                    Petitioner,

                                          v.


                           DEPARTMENT OF THE NAVY,

                                                    Respondent.




      Steven F. Gaddy, of Washington, DC, pro se.

       Michael N. O’Connell, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen,
Director, and Steven J. Gillingham, Assistant Director.

Appealed from: United States Merit Systems Protection Board
                       NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit


                                        2007-3001



                                   STEVEN F. GADDY,

                                                                Petitioner,

                                             v.

                             DEPARTMENT OF THE NAVY,

                                                                Respondent.



                            __________________________

                            DECIDED: March 19, 2007
                            __________________________



Before NEWMAN, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and PROST, Circuit
Judge.

PER CURIAM.




       Steven F. Gaddy petitions for review of the decision of the Merit Systems Protection

Board, Docket No. DC0752040660-B-1, sustaining the decision of the Navy to remove him

from his position as a civilian police officer. We affirm the decision of the Board.
                                     BACKGROUND

       Mr. Gaddy was employed at the Naval District of Washington, with five years of

federal service. On June 29, 2004, he was removed from service on charges of failure to

follow agency policy, commission of inappropriate conduct, and absence without leave.

The charges arose from three incidents.

       In the first incident, Mr. Gaddy was charged with failure to follow agency policy when

he refused access to a military housing facility to a guest of one of the residents, although

the guest had the necessary documentation to secure admission (a base parking sticker

and a military identification card). Mr. Gaddy describes the guest as "disorderly." After an

altercation which witnesses described as rude and abusive, Mr. Gaddy required the visitor

and her children to park their vehicle off of the base and walk to their destination on the

base, also in violation of base access policy.

       In the second incident, Mr. Gaddy by police car pursued a car that had failed to stop

at a base checkpoint, followed it off the base, and forced it to stop using a maneuver known

as a "tactical vehicle takedown" wherein the police car pulls in front of the pursued vehicle

and brakes and stops, forcing the pursued vehicle to stop. The car that Mr. Gaddy had

pursued was following an ambulance with flashing lights, which also had not stopped at the

checkpoint. The pursued car contained the family of the child in the ambulance. Mr.

Gaddy performed the "tactical vehicle takedown" at forty miles per hour on a busy

metropolitan street. Witnesses for the Navy testified that this conduct violated agency

policies and that the procedure was extremely dangerous.

       The third incident involved a leave request that Mr. Gaddy submitted to a supervisor

so he could attend a training course. The request stated that he had adequate leave to


2007-3001                                    2
cover the absence. The supervisor approved the leave but then revoked the approval

when he learned that Mr. Gaddy did not, in fact, have the necessary leave. Mr. Gaddy

attended the class, and the Navy charged him with absence without leave.

       Based on these three incidents the Navy removed Mr. Gaddy from employment. Mr.

Gaddy appealed to the MSPB. On October 21, 2004, the Administrative Judge dismissed

the appeal, without prejudice to refile, because Mr. Gaddy was incarcerated in Flint,

Michigan on an unrelated matter on the day of the scheduled hearing. Mr. Gaddy refiled

the appeal on December 21, 2004, and the same Administrative Judge dismissed it as

untimely filed. The full Board reversed the dismissal, and the appeal proceeded.

       The Navy then moved to dismiss the appeal because, following his removal, Mr.

Gaddy had been convicted of a felony (in Michigan) and was unable legally to carry a

firearm. The Navy argued that since he could not be reinstated to his position as a police

officer, the appeal of his dismissal had become moot. The AJ denied the motion, reasoning

that if Mr. Gaddy prevailed on his appeal he might be entitled to back pay for the period

from his removal to the felony conviction.

       The AJ held a hearing at which Mr. Gaddy and several witnesses testified

concerning the events on which his removal was based. Examining the demeanor of the

witnesses and assessing their motivation to be truthful, the AJ resolved the relevant factual

issues in favor of the Navy and sustained the charges. Examining the Douglas factors, the

AJ sustained the penalty of removal as appropriate to the charges that had been proved.

The full Board denied further review, and this petition followed.




2007-3001                                    3
                                       DISCUSSION

       Decisions of the Board must be sustained unless the decision was arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained

without procedures required by law, rule or regulation having been followed; or unsupported

by substantial evidence. 5 U.S.C. '7703(c); Covington v. Dep't of Health and Human

Services, 750 F.2d 937, 941 (Fed. Cir. 1984).

       Mr. Gaddy states that he was not aware of the policies that he was charged with

violating, or in the alternative that he had the authority to disregard them in performing his

duties as a police officer. Concerning the access to the Base, Mr. Gaddy testified that the

visitor was "very disorderly," and that he acted within the limits of his duties as a police

officer. Witnesses supported both Mr. Gaddy's version of the events, and the Navy's

version. Witnesses for the Navy testified that Mr. Gaddy was aware of the policies

regarding access to the Base and the pursuit of vehicles.

       Concerning the charge of AWOL, he states that he was unaware that his previously

granted request for leave had been revoked, and in all events that the revocation was

improper and that he had written permission to attend the training class. He points to the

official nomination for Mr. Gaddy to attend the training class, signed by his Navy supervisor.

A witness testified that Mr. Gaddy had been personally told by one of his supervisors that

his leave request had been revoked; a copy of the written revocation is in the record.

       The AJ reviewed this evidence and concluded that the Navy's witnesses were more

credible than Mr. Gaddy and his witnesses. The issues depend in part on credibility

determinations. Although Mr. Gaddy points to several conflicting statements among the

Navy's witnesses, credibility determinations in MSPB proceedings are virtually


2007-3001                                     4
unreviewable on appeal. See DeSarno v. Department of Commerce, 761 F.2d 657, 661

(Fed. Cir. 1985); Griessenauer v. Department of Energy, 754 F.2d 361, 364 (Fed. Cir.

1985).

         The AJ's findings are supported by substantial evidence, including the evaluation of

the penalty. The decision of the Board must be sustained.

         No costs.




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