       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                  MITCHELL FELD,
                     Petitioner,
                           v.
     DEPARTMENT OF VETERANS AFFAIRS,
               Respondent.
              __________________________

                      2012-3043
              __________________________

   Petition for review of the Merit Systems Protection
Board in Case No. DC0752100169-I-1.
              __________________________

                Decided: June 11, 2012
              __________________________

   MITCHELL I. FELD, of Silver Spring, Maryland, pro se.

    P. DAVIS OLIVER, 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. DAVIDSON, Director, and KIRK MANHARDT,
Assistant Director.
               __________________________
FELD   v. DVA                                              2


  Before LOURIE, PROST, and WALLACH, Circuit Judges.
PER CURIAM.
    Mitchell Feld appeals from the decision of the Merit
Systems Protection Board (“the Board”) denying his
petition for review and adopting, as modified, the initial
decision of the administrative judge (“AJ”) as the Board’s
final decision. Feld v. Dep’t of Veterans Affairs, No. DC-
0752-10-0169-I-1 (M.S.P.B. Sept. 30, 2011) (“MSPB final
decision”). The initial decision affirmed the Department
of Veteran Affairs’ (“VA”) decision to remove Mr. Feld
based upon the following charges: (1) Disclosure of Confi-
dential Information; (2) Conduct Unbecoming a Govern-
ment Employee; (3) Impairment of Service Effeciency.
Feld v. Dep’t of Veterans Affairs, No. DC-0752-10-0169-I-1
(M.S.P.B. Dec. 23, 2010) (“AJ initial decision”). We af-
firm.
                       BACKGROUND
     Mr. Feld was a General Attorney at the VA, Office of
General Counsel, from March 2001 until November 2009.
On August 29, 2008, he was placed on a performance
improvement plan (“PIP”) because his performance in two
critical elements, specifically timeliness and legal writing,
was unacceptable. After the evaluation period ended, the
VA notified Mr. Feld that he had demonstrated acceptable
performance, warned him that timeliness and legal writ-
ing were still of concern, and notified him that if his
performance was less than successful within one year of
the start of his PIP the VA could take adverse action
without giving him any further opportunity for improve-
ment. After that appraisal, Mr. Feld’s performance
deteriorated, and on June 16, 2009, his supervisor, Ms.
Rogall, proposed his removal for unsatisfactory perform-
ance, placing Mr. Feld on administrative leave. On
September 18, 2009, the proposed removal was rescinded
3                                              FELD   v. DVA


and a new one was issued. On November 18, 2009, the
VA issued a decision to remove Mr. Feld “from his em-
ployment based on four charges: (1) Disclosure of Confi-
dential Information . . .; (2) Conduct Unbecoming a
Government Employee . . .; (3) Apparent Conflict of Inter-
est; and (4) Impairment of Service Efficiency.” AJ initial
decision at 2.
    After a three day hearing the AJ affirmed the VA’s
decision to remove Mr. Feld finding that the VA proved by
preponderant evidence the Disclosure of Confidential
Information charge because Mr. Feld forwarded internal
documents to outside attorneys in contravention to the
American Bar Association’s Model Rules of Professional
Conduct. The AJ found that the VA proved by preponder-
ant evidence the Conduct Unbecoming a Government
Employee charge because Mr. Feld admitted to making
comments and sharing documents with adversarial attor-
neys and even though Mr. Feld stated he was joking, the
AJ doubted Mr. Feld’s veracity because of his demeanor
during testimony. The AJ found the VA also proved by
preponderant evidence the Impairment of Service Effi-
ciency charge, given that Mr. Feld failed to meet internal
agency and court deadlines. However, the AJ found the
VA failed to prove the charge of Apparent Conflict of
Interest.
    The Board denied Mr. Feld’s petition for review be-
cause Mr. Feld presented “no new, previously unavailable,
evidence” and because the AJ “made no error in law or
regulation that affects the outcome. 5 C.F.R. § 1201.115.”
MSPB final decision at 7. Mr. Feld filed a timely petition
for review. We have jurisdiction pursuant to 28 U.S.C. §
1295(a)(9) (2006).
FELD   v. DVA                                              4


                        DISCUSSION
    The scope of our review in an appeal from the Board is
limited. We must affirm the Board’s decision unless we
find it to be “(1) arbitrary, capricious, an abuse of discre-
tion, 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) (2006). Under the substan-
tial evidence standard, this court reverses the Board’s
decision only “if it is not supported by such relevant
evidence as a reasonable mind might accept as adequate
to support a conclusion.” Haebe v. Dep’t of Justice, 288
F.3d 1288, 1298 (Fed. Cir. 2002) (internal quotation
omitted).
    Mr. Feld raises several arguments. Mr. Feld first ar-
gues that the internal weekly reports he forwarded to
private attorneys were not confidential and there was no
harm in sharing them. 1 However, the AJ credited the

     1   Mr. Feld also argues that the American Bar Asso-
ciation’s Model Rules of Professional Conduct should only
be applied to his practice before the Court of Appeals for
Veterans Claims, and that all other matters should be
governed by New York state ethics laws, where, he says,
release of these documents would not be considered
misconduct. However, an attorney for the Government is
subject to the state and local federal laws and rules that
govern where the attorney engages in attorney’s duties to
the same extent as other attorneys in that state. 28
U.S.C. § 503B(a) (2006). Mr. Feld’s practice was in the
District of Columbia, which adopted the Model Rules of
Professional Conduct, with modification, in 1991, and his
litigation practice was before the Court of Appeals for
Veterans Claims, which adopted the Model Rules of
Professional Conduct, with modification, in 1983. D.C.
Rules of Prof’l Conduct, Preface; Ct. App. Vet. Cl., Rules of
Admission & Practice 4(a).
5                                               FELD   v. DVA


testimony of VA management who indicated that the
reports were intended for internal use and that they
disclosed the status of VA litigation and strategy. “The
evaluation of witness creditability is a matter within the
discretion of the AJ and is virtually unreviewable.” Frey v.
Dep’t of Labor, 359 F.3d 1355, 1361 (Fed. Cir. 2004)
(internal quotation omitted). Mr. Feld has not given
sufficient reason to overturn the AJ’s credibility determi-
nations. 2
    Mr. Feld stated that the statements used to support
the charge of Conduct Unbecoming a Government Em-
ployee were made in jest and that he has a right to ex-
press criticism of misconduct. 3 Again, the AJ credited
testimony of VA management who found Mr. Feld’s
statements highly unprofessional and damaging to the
reputation and work of the office. Mr. Feld attempted to
attack the VA Assistant General Counsel’s credibility (Mr.
R. Randall Campbell), but the AJ found Mr. Campbell had
no motive to testify falsely. Mr. Feld has not given suffi-


    2   Furthermore, despite Mr. Feld’s argument to the
contrary, attorney work product is not required to be
disclosed under the Freedom of Information Act. See 5
U.S.C. § 552; Dep’t of Interior and Bureau of Indian
Affairs v. Klamath Water Users Protective Ass’n, 532 U.S.
1, 8 (2001).
    3    The Government alleged and Mr. Feld stipulated
that the following comments were made to private attor-
neys: “These managers should really be investigated and
charged under the RICO statutes;” “I think VA should
hold these managers accountable for this kind of action.
These thugs raise nickel-dime objections just so they can
jam the fee award up for a year or more;” and “Don’t let
these HAMAS thugs hide behind civilians (me).” AJ
Initial Decision at 12-13.
FELD   v. DVA                                            6


cient reason for overturning the AJ’s credibility determi-
nations. 4
     Mr. Feld contends that it was impossible to meet the
deadlines the VA imposed and that other attorneys have
also failed to meet timeliness deadlines but have been
given bonuses and promotions, whereas he has been
singled out for removal. This argument is unpersuasive;
the AJ believed an agency witness who testified that Mr.
Feld’s work group was deadline driven, and he failed to
meet deadlines because he failed to maintain deadlines in
his calendar. There is substantial evidence that Mr. Feld
failed to meet the VA’s performance standards thus
impairing the VA’s efficiency.
    Because the Board’s findings are supported by sub-
stantial evidence and are not contrary to law, we affirm. 5


                        AFFIRM


No costs.



    4   Mr. Feld incorrectly argued that Mr. Campbell
“brazenly lied about a material fact when he testified
falsely that the appellant ‘had been passed over for pro-
motion 10 times.”’ Mr. Campbell actually testified that
Mr. Feld “worked for about 10 different supervisors, five
of whom have complained about his unreliability in
missing deadlines. That he’d been passed over for promo-
tions several times because of his work record, been on
two PIPs, a host of things.”
   5     We have considered Mr. Feld’s other arguments
on appeal and find them to be without merit, or alterna-
tively, not properly before this court.
