Augustine Garibay, Petitioner, v. Veterans Administration, Respondent, 847 F.2d 842 (Fed. Cir. 1988)

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U.S. Court of Appeals for the Federal Circuit - 847 F.2d 842 (Fed. Cir. 1988) April 28, 1988

Before FRIEDMAN, Circuit Judge, BENNETT, Senior Circuit Judge, and PAULINE NEWMAN, Circuit Judge.



In this appeal petitioner seeks to overturn the final decision of the Merit Systems Protection Board (board), 35 M.S.P.R. 327 (1987). The board affirmed the decision of its presiding official (now administrative judge) who had concluded, after a hearing, that the agency was correct in finding that petitioner was not entitled to, and had forfeited, his claim for back pay by reason of fraudulently claiming he had received no interim earnings during the period of his separation which could be offset against back pay to which he would otherwise be entitled. We affirm.


The board's opinions are comprehensive and in agreement that petitioner falsely attempted to obtain full back pay to which he was not entitled and that he had failed to provide his agency with a true statement of interim earnings. Petitioner had full opportunity to explain his position in this matter and to clarify conflicting statements he had made about interim earnings. He raises a number of arguments in the present appeal, all of which we find to be without merit.

The crux of this case is that the official who heard the evidence decided the case on the basis of the credibility of the testimony and on review of all the evidence of record. The board on review properly deferred to the trier of the facts on the credibility issue, because he alone had opportunity to observe the demeanor of the witnesses under oath and cross-examination. We must do the same under the circumstances of this case. See Hambsch v. Department of the Treasury, 796 F.2d 430 (Fed. Cir. 1986); Jackson v. Veterans Administration, 768 F.2d 1325 (Fed. Cir. 1985); Hagmeyer v. Department of the Treasury, 757 F.2d 1281 (Fed. Cir. 1985); Green v. United States, 222 Ct. Cl. 600 (1980). Under our limited statutory scope of review there can be no other rational result. The board's opinion is without harmful procedural or legal error, it is not arbitrary or capricious or an abuse of discretion, and it is supported by substantial evidence. 5 U.S.C. § 7703(c) (1982).