William L. Hobson, Petitioner, v. Department of the Army, Respondent, 865 F.2d 269 (Fed. Cir. 1988)

DECISION

William L. Hobson, formerly a civilian employee of the United States Army, petitions for review of a decision of the Merit Systems Protection Board, No. SE07528710334, affirming his removal from his position as foreman of the automobile shop at Fort Richardson, Alaska. We affirm.

OPINION

Our affirmance is on the basis of the initial decision of John W. Tapp, Administrative Judge (AJ), which the board declined to review in its final order. Hobson was removed for attempted theft of tires from a privately owned vehicle that was undergoing repairs in the automobile shop and unauthorized possession of property. He was acquitted in a criminal trial on the same charge, but the AJ adequately explains the difference as due to the higher standard of proof required for a criminal conviction. The AJ regards the case as a close one. He rather reluctantly disbelieves Hobson's own selfexculpatory testimony seeking to explain his possession of the tires, on the ground of its inconsistency with Hobson's prior statements as to certain essential points. He also recognized the inconsistency of Hobson's and Hoffman's testimony. This kind of credibility determination is in the AJ's province to make and provides substantial evidence in support of the AJ's ultimate determination that Hobson had the tires in his possession with intent to steal them. If Hobson's denials are disbelieved, the AJ's conclusions that nexus was established and that the penalty was not excessive cannot be and are not seriously attacked.