                  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
                                         05-3386

                                  WILLIAM W. TRUXES,

                                                              Petitioner,

                                             v.

                          DEPARTMENT OF THE AIR FORCE,

                                                              Respondent.

                            ___________________________

                            DECIDED: February 14, 2006
                            ___________________________

Before LOURIE, RADER, and DYK, Circuit Judges.

RADER, Circuit Judge.

       The Merit Systems Protection Board (Board) affirmed the Department of the

Air Force’s (Agency) decision to remove William W. Truxes from his position as an

Electronics Engineer in the Software Engineering Division at the Hill Air Force Base.

See Truxes v. Dep’t of Air Force, DE-0752-04-0118-I-1 (M.S.P.B. Oct. 21, 2004) (Board

Decision). Finding no reversible error, this court affirms.

                                     BACKGROUND

       On August 19, 2003, Mr. Truxes was tasked with ensuring that certain software

programs could be tested on an automated testing system the Agency had adopted. Id.

at 3. Mr. Truxes was instructed to complete the project by October 9, 2003, and to

provide weekly progress updates to his direct supervisor, Mr. Chuck McPhee.       Id.
Despite these instructions, Mr. Truxes did not provide any progress updates to

Mr. McPhee, nor did he complete the project on time.          Id.   Thus, Mr. McPhee

reassigned the project to another engineer and initiated a review of the work Mr. Truxes

billed to the project. Id.

       Ultimately, Mr. McPhee concluded that Mr. Truxes’s work on the project involved

simple cosmetic changes, inconsistent with the approximately 170 hours he billed to the

project. Id. at 3-4. The large number of hours billed by Mr. Truxes was particularly

bothersome in light of a lower grade engineer’s ability to complete the project from

scratch in less than 40 hours. Mr. McPhee thus issued a Notice of Proposed Removal

to Mr. Truxes for: (1) misrepresenting the hours spent on assigned work; and (2) failing

to carry out assigned work.

       Mr. Truxes did not respond to the Notice of Proposed Removal, which was

subsequently adopted by the Deciding Official at the Agency. However, Mr. Truxes did

appeal the Agency’s ultimate removal decision to the Board, but was unsuccessful in

convincing the Board to overturn it. Id. at 8.

                                      DISCUSSION

       This court affirms a decision of the Board unless it is arbitrary, capricious, an

abuse of discretion, not in accordance with the law, or unsupported by substantial

evidence. See 5 U.S.C. § 7703(c) (2000); Marino v. Office of Pers. Mgmt., 243 F.3d

1375 (Fed. Cir. 2001).

       In this case, Mr. Truxes alleges that substantial evidence does not support the

Board’s decision with respect to either charge. Mr. Truxes first argues that he did not

make significant changes to the code because he sought instead a hardware remedy




05-3386                                      2
that, if it had been successful, would have made it unnecessary to make changes in a

large number of programs (a “global” solution). Board Decision, slip op. at 4. When the

Agency did not discredit his “global” solution before the Board, Mr. Truxes assumed

“[he] has been punished for showing initiative.” Appellant’s Pet. For Review & Req. To

Reopen 4 (Nov. 23, 2004). To the contrary, the administrative judge properly rejected

Mr. Truxes’s “global” solution argument in light of the evidence of record:

        First, [the testimony of record demonstrated that Mr. Truxes] was never
        given the assignment to seek a global resolution. Second, [Mr. Truxes]
        admits that he never sought permission to accomplish such an
        assignment and never apprised . . . any supervisor of his more global
        approach to the problem. . . . Third, and perhaps most significantly, the
        record is devoid of any work product establishing that he spent significant
        time in search of such a global resolution. . . . Finally, I find speculative,
        at best, [Mr. Truxes’] assertion that confirming materials must have been
        taken by unknown parties (and for unknown reasons) from the library
        where he had deposited them.

Id. at 6.

        Mr. Truxes next argues that “[the] preponderance of the evidence does not show

that [he] intentionally failed to complete the project or intentionally misrepresented his

hours.” Appellant’s Pet. For Review & Req. To Reopen 3 (Nov. 23, 2004) (emphasis

added). This argument fails for at least two reasons. First, the charge of failing to carry

out the work as directed does not contain an intent requirement. As summarized by the

administrative judge:

        In sum, the findings . . . show that the agency has proven the failure-to-
        complete-the-assignment-within-the-allotted-hours charge by a preponder-
        ance of the evidence. This is so because the agency has established that
        a clear assignment/instruction was given, it was reasonable to expect [Mr.
        Truxes] to complete the assignment within the 30-day period, and he
        failed to do so.

Board Decision, slip op. at 6 (emphasis added). Thus, Mr. Truxes’s intent is immaterial

as to at least one of the two charges.


05-3386                                       3
       Second, the evidence of record clearly supports the conclusion that Mr. Truxes

was aware of the project requirements, that he did not complete the project within the

allotted hours, and that he intentionally misrepresented the number of hours he spent

working on the project. Specifically, Agency witnesses testified that:

       1) over [their] tenure [Mr. Truxes] had shown himself to be a
       knowledgeable and competent journeyman engineer; 2) assignment no.
       0059 was a moderate to simple task that could easily be accomplished in
       30 days; 3) [Mr. Truxes’] work product revealed that he had made only
       minor/cosmetic changes to the . . . software that should have taken less
       than one day to accomplish; 4) [Mr. Truxes] never indicated that he was
       having any problems with the project; and 5) the new GS-7 grade level
       engineer to whom assignment no. 0059 was reassigned finished the
       assignment within 40 work hours.

Board Decision, slip op. at 5-6 (citations to the record omitted).           Notably, the

administrative judge found these Agency witnesses more credible than Mr. Truxes.

King v. Dep’t of Health & Human Serv., 133 F.3d 1450, 1452 (Fed. Cir. 1998) (“an

evaluation of witness credibility is within the discretion of the board,” [and therefore],

“such evaluations are ‘virtually unreviewable’ on appeal.”).

       Based on this testimony and the lack of evidence demonstrating Mr. Truxes

worked on a “global” solution, the record suggests that he did not complete the project

within the allotted hours and could not reasonably have spent the 170 hours he billed to

the project. In addition, the record supports the inference that Mr. Truxes overstated the

hours spent on the project. After all, the junior engineer took only 40 hours to finish the

project. Thus, substantial evidence supports the Board’s conclusion on both charges.




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