Robert J. Imbrogno, Petitioner, v. Defense Logistics Agency, Respondent, 867 F.2d 616 (Fed. Cir. 1989)

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US Court of Appeals for the Federal Circuit - 867 F.2d 616 (Fed. Cir. 1989)

Jan. 25, 1989


Before EDWARD S. SMITH, PAULINE NEWMAN and MICHEL, Circuit Judges.

PAULINE NEWMAN, Circuit Judge.


DECISION

Robert J. Imbrogno petitions for review of the decision of the Merit Systems Protection Board (Board) in Docket Number PH07528710628, affirming his removal for soliciting and accepting a gratuity from a government contractor. We affirm.

OPINION

Mr. Imbrogno challenges the decision of the Administrative Judge (AJ), which credited the testimony of two witnesses who themselves had admitted culpability. Credibility determinations of witnesses, made by the official who hears the testimony and observes the demeanor of the witnesses, are virtually unreviewable by this court. Hambsch v. Department of Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986). This case turns on these credibility determinations. The testimony of the witnesses testifying against Mr. Imbrogno is not inherently incredible. Thus, we can not base a reversal on the aspect of credibility.

Petitioner argues that the AJ failed to comment on or summarize all the evidence presented to him, and that the proposing and deciding officials were biased in their decisions on his removal and merely rubber-stamped a decision to remove him previously made by a Defense Logistics Agency investigative Task Force. The AJ need not discuss every piece of evidence in order to show that it was considered, in the litigation of the entire issue before the AJ. See Medtronic, Inc. v. Daig Corp., 789 F.2d 903, 906 (Fed. Cir. 1986). Mr. Imbrogno has not met the burden imposed on him by 5 U.S.C. § 7703(c).

Petitioner also argues that removal was an improper penalty, too harsh for this offense, under the applicable table of penalties. The government correctly states that the 1974 table does not bar the penalty here imposed for this offense. The Board did not exceed its discretionary authority in affirming the penalty of removal. Miguel v. Department of the Army, 727 F.2d 1081, 1083 (Fed. Cir. 1984) (court will defer to agency's choice of penalty unless its severity is totally unwarranted in light of relevant factors).