NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit[End Page 2009-3106]
STEVEN M. KOCH,
DEPARTMENT OF THE NAVY,
Steven M. Koch, of Clearwater, Florida, pro se.
Richard P. Schroeder, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
him on the brief was Jeanne E. Davidson, Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit[End Page 2009-3106]
STEVEN M. KOCH,
DEPARTMENT OF THE NAVY,
Petitions for review of the Merit Systems Protection Board in DC-0752-08-0550-I-1.
DECIDED: June 4, 2009
Before MAYER, GAJARSA, and DYK, Circuit Judges.
Steven M. Koch seeks review of the final decision of the Merit Systems
Protection Board affirming his removal from the Department of Navy. See Koch v. Dep't
of Navy, No. DC-0752-08-0550-I-1 (M.S.P.B. Aug. 13, 2008). We affirm.
Koch began work for the Navy in 2002. On July 6, 2005, he was suspended for
two days based on his failure to report for duty. On October 4, 2007, the Navy
proposed to remove him for failure to remain on watch, unprofessional conduct and
failure to obey. Koch and the Navy subsequently entered into a settlement agreement,
under which the Navy agreed to suspend Koch for thirty days rather than remove him,
and he agreed to obtain counseling for anger management.
On February 19, 2008, while aboard the USNS KISKA, Koch reported to Donna
R. Bennett, the ship's purser, that his common access card had expired and that he
needed to have it renewed. Bennett informed Koch that he should have renewed his
card while the ship was in Guam, and that she could not guarantee that she could assist
him. According to Bennett, Koch then began to shout and accuse her of not doing her
job. Bennett testified that she felt "physically threatened" by Koch "because he is a big
man and he kept yelling."
Two days later, Koch went to the office of Chief Mate Addison Burroughs, where
he made disparaging remarks about Bennett. Burroughs testified that Koch started
"jabbing his finger" at him, cursed at him and only left his office after being asked to do
so three times.
On May 6, 2008, the Navy removed Koch for unprofessional conduct and failure
to obey. After the board affirmed the Navy's removal decision, Koch timely appealed to
This court's review of a board decision is limited by statute. We must affirm
such a decision unless it is arbitrary, capricious, an abuse of discretion, otherwise not in
accordance with law, obtained without required procedures, or not supported by
substantial evidence. 5 U.S.C. § 7703(c); Fields v. Dep't of Justice, 452 F.3d 1297
1301 (Fed. Cir. 2006).
Substantial evidence supports the board's determination that Koch engaged in
unprofessional conduct and failed to obey orders. Both Bennett and Burroughs testified
that Koch acted in a belligerent and inappropriate manner, and Burroughs asserted that
Koch only left his office after being asked to do so three times. As the board correctly
noted, the testimony of Bennett and Burroughs was "corroborated by their written
statements and by the similarities in their descriptions of [Koch's] behavior." This court
gives great weight to the board's credibility determinations, and the board found the
testimony of Bennett and Burroughs to be more credible than that of Koch. See
Hubbard v. United States, 480 F.3d 1327
, 1332 (Fed. Cir. 2007) (A reviewing court
should not "second guess" the credibility determinations made by a trial court.); Bieber
v. Dep't of Army, 287 F.3d 1358
, 1364 (Fed. Cir. 2002) ("The credibility determinations
of an administrative judge are virtually unreviewable on appeal.").
The thrust of Koch's argument on appeal is that he "did [his] job very well," and
that removal was therefore an unduly harsh penalty. This court, however, cannot
overturn an agency's choice of "penalty unless it is unauthorized or exceeds the bounds
of reasonableness because it is so harsh and unconscionably disproportionate to the
offense that it amounts to an abuse of discretion, or where the record is devoid of any
basis demonstrating reasonableness." Dominguez v. Dep't of Air Force, 803 F.2d 680
684 (Fed. Cir. 1986). Here, Koch acted disrespectfully and inappropriately to both
Burroughs and Bennett, and the Navy correctly concluded that this type of behavior
could not be condoned in a situation in which employees "all had to live and work
together in a small environment aboard a ship." Furthermore, this was the third
disciplinary action taken against Koch since he began work with the Navy seven years
earlier. Under such circumstances, the Navy did not act unreasonably in deciding to
remove Koch from his position.
We have considered Koch's remaining arguments but find them unpersuasive.