878 F.2d 1445
Tomas MALDONADO, Petitioner,
UNITED STATES POSTAL SERVICE, Respondent.
United States Court of Appeals, Federal Circuit.
May 11, 1989.
NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Before MARKEY, Chief Judge, RICH, Circuit Judge, and NICHOLS, Senior Circuit Judge.
The decision of the Merit Systems Protection Board (MSPB or board), Docket No. NY07528810323, affirming Tomas Maldonado's (Maldonado) appeal of his removal by the United States Postal Service (USPS) is affirmed.
Maldonado's argument that dismissal of the criminal charges conclusively establishes that no assault occurred is unavailing. The statements of postal employees Tirado, Roman, Marrero, Rivera, and Padilla are substantial evidence supporting the MSPB's finding that an assault occurred on the property of the USPS.
Maldonado further contends that he had no duty to intervene, because the assaulted employees were not interfered with during the performance of their official duties as described in 18 U.S.C. Sec. 111. The charge against Maldonado is based upon "failure to protect postal employees who were being assaulted in your presence." Notice of Proposed Removal dated March 24, 1988. That duty stems from Postal Police Officer Manual Sec. 138.12 and not from 18 U.S.C. Sec. 111. Therefore, the occurrence or nonoccurrence of an assault as defined in 18 U.S.C. Sec. 111 is not relevant to the charge from which Maldonado has appealed.
We therefore affirm on the basis of the board's opinion because we do not find the decision arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or obtained without procedures required by law, rule, or regulation having been followed, or unsupported by substantial evidence. 5 U.S.C. Sec. 7703(c); see Phillips v. United States Postal Service, 695 F.2d 1389, 1390 (Fed.Cir.1982).