               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.




06-3067                                     2
