Timothy Edward Flood v. Department of the Army

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
TIMOTHY EDWARD FLOOD,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
__________________________
2010-3023
__________________________
Petition for review of the Merit Systems Protection
Board in PH0752090209-I-1.
___________________________
Decided: August 5, 2010
___________________________
TIMOTHY EDWARD FLOOD, of Arlington, Massachu-
setts, pro se.
D EVIN A. WOLAK , Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. D AVIDSON , Director, and D ONALD E. K INNER,
Assistant Director.
__________________________

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FLOOD v. ARMY 2
Before RADER, Chief Judge, LOURIE and M OORE, Circuit
Judges.
PER CURIAM.
Petitioner Timothy Flood seeks review of the final de-
cision of the Merit Systems Protection Board (Board)
terminating his position as a civilian Police Officer at the
U.S. Army Garrison in Natick, Massachusetts (Natick).
Flood v. Dep’t of the Army, No. PH-0752-09-0209-I-1
(M.S.P.B. Aug. 28, 2009). Because substantial evidence
supports the Board’s decision to uphold Mr. Flood’s re-
moval, we affirm.
Mr. Flood worked as a civilian Police Officer at Na-
tick. On August 6, 2008, the Army notified Mr. Flood that
it proposed to remove him from federal service based on
two charges: violation of the Army’s Physical Security
Policy and insubordination. Charge 1 consisted of two
specifications, the first being the storage of weapons in a
vehicle parked at Natick in violation of Massachusetts
General Laws (MGL) Chapter 140, Section 131L and
Army Regulation 190-11, and the second being the stor-
age of ammunition in the same vehicle in violation of
Army Regulation 190-11. The vehicle in question did not
belong to Mr. Flood and was presumed abandoned.
Charge 2, insubordination, was based on Mr. Flood’s
failure to report to his supervisor on August 6, 2008,
despite direct orders to do so.
In a removal decision dated December 19, 2008, Lieu-
tenant Colonel Kari Otto, the Garrison Commander at
Natick, found that all three specifications were estab-
lished by credible evidence. Mr. Flood appealed his
removal to the Board, which sustained all specifications
and charges against Mr. Flood and affirmed his removal.
Mr. Flood petitioned for review by the full Board, which
the Board denied, and the initial decision became final.

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FLOOD v. ARMY 3
Mr. Flood appeals. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
The scope of our review in an appeal from a decision
of the Board is limited. We must affirm the Board's
decision unless it was “(1) arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c); see Briggs v.
Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
Mr. Flood does not dispute that he stored weapons
and ammunition in an abandoned automobile on the
Natick installation. Army Regulation 190-11, paragraph
4-5d(2), states that “[p]ersonnel keeping or storing pri-
vately-owned arms and ammunition . . . on military
installations will—(2) Store both arms and ammunition in
the unit arms room or other locations authorized by the
installation commander.” Storage of the weapons and
ammunition in the vehicle, which was not a location
authorized by Lt. Col. Otto, both violate Army Regulation
190-11.
Mr. Flood’s central argument in defense of Specifica-
tion 1 of Charge 1 is that prior to June 11, 2008, he stored
the personal weapons in the Natick Arms Room, but he
removed them to the abandoned vehicle at the order of
Lieutenant David McCrillis. Lt. McCrillis denied knowl-
edge of the weapons being stored in the Arms Room, and
he denied ordering Mr. Flood to move them. The adminis-
trative judge (AJ) found Lt. McCrillis to be more credible
than Mr. Flood based on corroboration by other officers
and inconsistencies in Mr. Flood’s testimony. The “de-
termination of the credibility of witnesses is within the
discretion of the presiding official who heard their testi-
mony and saw their demeanor.” Griessenauer v. Dep’t of

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FLOOD v. ARMY 4
Energy, 754 F.3d 361 (Fed. Cir. 1985). Credibility deter-
minations will not be upset unless they are “inherently
improbable or discredited by undisputed evidence or
physical fact.” Gibson v. Dep’t of Veterans Affairs, 160
F.3d 722, 725-26 (Fed. Cir. 1998). Mr. Flood has not
offered undisputed evidence or facts sufficient to overturn
this credibility determination. Therefore, both specifica-
tions of Charge 1 with respect to violation of Army regula-
tions are supported by substantial evidence.
Mr. Flood also argues that he did not violate Massa-
chusetts state law in storing the weapons because the
weapons were secured in a locked gun case. Massachu-
setts General Laws (MGL) Chapter 140, Section 131L
states that it is unlawful to store or keep firearms “in any
place unless such weapon is secured in a locked container
or equipped with a tamper-resistant mechanical lock or
other safety device.” However, the AJ cited testimony by
an officer who searched the vehicle, Officer Santoro, who
stated that the gun case was not locked and no safety
devices were on the weapons. The AJ found Officer
Santoro also to be more credible than Mr. Flood, and Mr.
Flood has offered no evidence that the case was locked
other than his testimony. We therefore conclude that
substantial evidence supports Specification 1 of Charge 1
as to violation of Massachusetts General Law.
We need not address the charge of insubordination.
Lt. Col. Otto made it clear in the removal letter that
“commission of either specification of Charge 1 would
independently support [Mr. Flood’s] removal.” Given that
only one specification of Charge 1 would be sufficient for
Army to remove Mr. Flood, and we conclude that both
specifications of Charge 1 are supported by substantial
evidence, we need not reach Charge 2.

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FLOOD v. ARMY 5
We “will not disturb a penalty unless it exceeds the
range of permissible punishment or is ‘so harsh and
unconscionably disproportionate to the offense that it
amounts to an abuse of discretion.’” Gonzales v. Def.
Logistics Agency, 772 F.2d 887, 889 (Fed. Cir. 1985)
(quoting Villela v. Dep’t of the Air Force, 727 F.2d 1574,
1576 (Fed. Cir. 1984)). “Penalty decisions are judgment
calls best left to the discretion of the employing agency.”
Id. Mr. Flood argues that the penalty is extreme for a
first offense. Despite this mitigating factor, the charges of
improper storage of deadly weapons and ammunition in
an abandoned vehicle are very serious due to the potential
consequences of Mr. Flood’s actions. The penalty of
removal does not constitute an abuse of discretion.
For the foregoing reasons, the judgment of the Board
is affirmed.
AFFIRMED
COSTS
No costs.

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