                 NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                   is not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit


                                       05-3284

                               BRIAN J. DONOGHUE

                                                            Petitioner,

                                          v.

                        UNITED STATES POSTAL SERVICE,


                                                            Respondent.

                           __________________________

                            DECIDED: January 11, 2006
                           __________________________



Before GAJARSA, DYK, and PROST, Circuit Judges.

PER CURIAM.


                                      DECISION

      Brian J. Donoghue petitions for review of the May 27, 2005 final decision of the

Merit Systems Protection Board ("Board") adopting the initial decision of the

administrative judge ("AJ"). On July 9, 2004, the AJ affirmed the United States Postal

Service's ("USPS") removal of Donoghue for improper conduct. Donoghue v. United

States Postal Service, No. CH-0752-04-0353-I-1 (M.S.P.B. July 9, 2004). Because the
Board's decision is not arbitrary, capricious, or an abuse of discretion, is supported by

substantial evidence and is otherwise in accordance with the law, we affirm the Board's

decision and deny the petition.

                                     BACKGROUND

       Donoghue was the Postmaster for the USPS in Owensville, OH. On the day in

question, May 13, 2003, Donoghue and a clerk, Angie Breving, were the only

employees working at the Owensville Post Office.

       The day before, on May 12, 2003, Postal Inspector Gary Bishop mailed a test

letter to a non-existent post office box at Owensville that offered a phony promotion to

win Cincinnati Reds Baseball Tickets. Inspector Bishop testified that when he mailed

the letter he affixed first-class postage.   The letter itself consisted of a folded card

sealed with a sticker containing a detachable portion that could be filled out with the

applicant's name and address and returned. Basically, the letter was undeliverable first-

class mail.

       Postal employees are prohibited from opening first-class mail, 39 U.S.C.

§ 3623(d), and Postal regulations require that all undeliverable first-class mail be sent to

the Mail Recovery Center in Atlanta, GA. The reply card from the test mailer sent to

Owensville, however, was filled out and signed by Donoghue and sent back to the

Inspection Service on May 13, 2003. Bishop received the reply card from Donoghue on

May 14, 2003.

       Six months later, on November 20, 2003, Bishop and Postal Inspector Richard

Dent interviewed Donoghue at the Owensville Post Office.            According to Bishop,

Donoghue remembered sending the reply card using his name and personal address




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but could not remember how he got the card. Bishop's investigative memorandum

indicated that Donoghue stated he never took undeliverable mail for his personal use

and that undeliverable first-class mail was sent to the Mail Recovery Center.

       Joe Meimann, Manager of Post Office Operations, sent Donoghue a Notice of

Proposed Removal on January 7, 2004 notifying him of his pending removal for

improper conduct. Meimann's proposal noted that Donoghue's record had no elements

of discipline.   Cincinnati District Postmaster Denise D. Porter heard Donoghue's

response to the removal and issued a letter of decision removing Donoghue on March

12, 2004. The letter of decision noted his 18 years of service and lack of disciplinary

record but found that the seriousness of his actions outweighed this mitigating evidence.

       At the hearing before the AJ, Donoghue again admitted that he filled out the test

mailer but did not remember how it arrived on his desk. He testified that he did not

know it came from opened mail and that he never saw the outer portion of the test letter.

He supposed that the letter may have been left by a clerk or a customer. Furthermore,

in a pre-hearing statement, Donoghue explained that he would have checked to see if

the card came out of the mail before filling it out, and therefore he must have been

comfortable enough with his alleged inquiry that he filled out the card.

       Breving, the only other employee to work that day at the Owensville Post Office,

testified that she did not know whether she placed the card on Donoghue's desk. She

testified that her memory was poor and that if someone said she placed it there, she

would believe them. Regardless, she also testified that she had never opened first-

class mail even if undeliverable.

       The AJ's initial decision found that it was more likely than not that the test letter




05-3284                                      3
arrived undamaged at the Owensville Post Office on May 13, 2003 and that Breving and

Donoghue were the only people with access to the undelivered mail that day. The AJ

found Breving's testimony credible that she never opened first-class mail; therefore

Donoghue was the only person with access to the test letter on May 13, 2003. Because

there was no evidence to suggest the reply card was somehow separated from the test

letter in the normal handling of the mail, the AJ concluded it was more likely true than

not that Donoghue "opened the test letter and appropriated it for his personal use" and

therefore sustained the USPS's charge of improper conduct. The AJ further held that

the USPS action was taken to promote the efficiency of the service, pursuant to

5 U.S.C. § 7513(a) and that the penalty of removal was not unreasonable.

                                      DISCUSSION

       We must affirm an MSPB decision unless it is "(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)(1)-(3) (1994); accord Hayes v. Dep't of the

Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984). A decision is supported by substantial

evidence when "a reasonable mind might accept [it] as adequate to support a

conclusion." Matsushita Elec. Industrial Co. v. United States, 750 F.2d 927, 933 (Fed.

Cir. 1984) (citation omitted).

       Donoghue makes two general arguments.            First, he argues that the USPS

investigation is inadequate and there was insufficient evidence that he opened first-

class mail. Second, he contends that the USPS committed harmful procedural error by

waiting six months to investigate the incident and by not initially interviewing Breving.




05-3284                                      4
       A.     Evidence of Misconduct

       The USPS has the burden of proving the improper conduct charge by a

preponderance of the evidence. 5 C.F.R. § 1201.56(a). This standard requires the

USPS to prove that the charge is more likely true than not true. § 1201.56(c)(2).

       Donoghue seems to suggest that the agency must present direct evidence that

he actually opened the mail knowing that it was undeliverable first-class mail. Instead,

the USPS provided circumstantial evidence that the first-class letter was mailed to the

Owensville Post Office, that it arrived on May 13, 2003, that the only persons with

access to the undelivered first-class mail on May 13, 2004 were Donoghue and Breving,

that Breving by her testimony never opened first-class mail, and that Donoghue filled

out and returned the reply card on May 13, 2004. Donoghue in his testimony submitted

that he did not know how the opened letter arrived on his desk but that it did and that he

would never have completed the card unless he was comfortable it was not

undeliverable first-class mail.

       It is not unreasonable to infer from such evidence that Donoghue opened first-

class mail. "[D]irect evidence of a fact is not necessary. Circumstantial evidence is not

only sufficient, but may also be more certain, satisfying and persuasive than direct

evidence." Fuji Photo Film Co. v. Jazz Photo Corp., 394 F.3d 1368, 1374 (Fed. Cir.

2005) (citation omitted). Here, the AJ simply chose to discredit Donoghue's testimony

and give more weight to Breving's testimony that she had never opened undeliverable

first-class mail.   Such witness credibility determinations are entitled to considerable

deference by us and are "virtually unreviewable." See Blank v. Dep't of the Army,

247 F.3d 1225, 1228 (Fed. Cir. 2001). We see no error in the AJ's analysis of the facts




05-3284                                     5
and hold that there was substantial evidence of improper conduct.

      B.     Procedural Error

      Next, Donoghue argues that the USPS performed an improper investigation by

waiting six months before interviewing him and never interviewing Breving.           He

maintains that the error was harmful.

      The Board may overturn an agency decision if it "shows harmful error in the

application of the agency's procedures in arriving at such decision." 5 U.S.C.

§7701(c)(2)(A). Harmful error is defined by Board regulations as:

      Error by the agency in the application of its procedures that is likely to have
      caused the agency to reach a conclusion different from the one it would have
      reached in the absence or cure of the error. The burden is upon the appellant to
      show that the error was harmful, i.e. that it caused substantial harm or prejudice
      to his rights.

5 C.F.R. §1201.56(c)(3).      We have recognized that some amount of time for

investigation is acceptable before bringing charges of improper conduct. See Shaw v.

United States Postal Service, 697 F.2d 1078, 1080 (Fed. Cir. 1983). Moreover, even if

the delay is erroneous the employee must demonstrate how it substantially harms him.

Id.

      Donoghue's basic argument is that his and Breving's memories would have been

better had the USPS interviewed them sooner.        However, the lack of interviewing

Breving was cured by her own testimony at the hearing. The AJ found her testimony

credible that she did not open first-class mail. Further, Donoghue has not indicated

what he could have testified to that would indicate someone else opened the mail. The

facts demonstrate that only he and Breving had access to the undelivered mail and that

Breving never opened first-class mail. The actual controversy here is the credibility of

the evidence; a decision we leave to the AJ unless the petitioner can show he abused


05-3284                                    6
his discretion.

       The Board's decision is not arbitrary, capricious, or an abuse of discretion, it is

supported by substantial evidence and is otherwise in accordance with the law.

Accordingly, we affirm the Board's decision and deny the petition.

       Each side shall bear its own costs.




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