               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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