                      NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                      2007-3326

                                   MARK J. DOYLE,

                                                             Petitioner,

                                           v.

                           DEPARTMENT OF THE ARMY,

                                                             Respondent.


      Christopher D. Vaughn, Melville Johnson, P.C., of Atlanta, Georgia, for petitioner.

       Hillary A. Stern, Senior Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
her on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Todd M. Hughes, Deputy Director.

Appealed from: Merit Systems Protection Board
                           NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                          2007-3326

                                       MARK J. DOYLE,

                                                                        Petitioner,

                                              v.

                              DEPARTMENT OF THE ARMY,

                                                                        Respondent.

Petition for review of the Merit Systems Protection Board in PH0752060158-I-1.
                            ___________________________

                           DECIDED: May 12, 2008
                           ___________________________


Before LOURIE, BRYSON, and DYK, Circuit Judges.

PER CURIAM.

      Petitioner Mark J. Doyle challenges the decision of the Merit Systems Protection

Board (“Board”) affirming a decision of the Department of the Army (“agency”) to

remove petitioner from his position.    Because we conclude that petitioner’s challenges

to the credibility findings made by the Administrative Judge (“AJ”) and adopted by the

Board, and to the Board’s review of the agency’s selection of a penalty, are without

merit, we affirm the Board’s determination.

                                       BACKGROUND

      Petitioner was a civilian aircraft pilot employed by the agency at the

Communications-Electronics Research, Development and Engineering Center Flight

Activity in Lakehurst, New Jersey. Petitioner was assigned as a pilot in command on a

planned thirty-nine day mission, which began on June 13, 2005, to fly an aircraft from
Arizona to a military base in Apiay, Colombia and to conduct testing of a new foliage-

penetrating radar system. Brian E. Trainor, a major in the New Mexico Air National

Guard, was assigned as petitioner’s co-pilot for the flight to Colombia, and two other

personnel, Thomas L. Boutwell and Michael Morris, were also assigned to the mission.

En route to Apiay, the crew stopped overnight in New Orleans, Louisiana; stopped for

several nights at Boca Chica Airbase in Key West, Florida; landed to refuel in the

Cayman Islands; and stopped overnight in Barranquilla, Colombia, and briefly in Bogota,

Colombia.     On approximately June 21, 2005, after flying the aircraft to Apiay as

planned, petitioner was relieved of his duties based on alleged misconduct.

       On August 19, 2005, petitioner was issued a notice of proposed removal alleging

three charges: “1) discourtesy; 2) careless or reckless operation of an aircraft, contrary

to FAA regulation § 91.13, endangering personnel and property; and 3) failure to follow

orders where safety of persons or property is endangered.” Doyle v. Dep’t of the Army,

No. PH-0752-06-0158-I-1, slip op. at 2 (M.S.P.B. Feb. 15, 2007) (“Initial Decision”). The

first charge contained three specifications, alleging that petitioner was rude to Trainor

during a cab ride to the airport in New Orleans and alleging that on two occasions

petitioner was rude to Major Kodjo Knox-Limbacker, the overall commander of the

operation, during briefings in Apiay.

       The second charge contained four specifications all relating to unsafe operation

of the aircraft and specifically alleging that petitioner: (1) failed to follow air traffic control

directions while departing from Lakefront Airport in New Orleans; (2) recklessly flew

through a storm on his approach to Boca Chica in Key West, Florida; (3) failed to follow

reasonable safety procedures on his approach to Barranquilla, Colombia; and (4) flew




2007-3326                                   2
directly toward dangerous mountain terrain in icing conditions after he should have

known to turn back, during a validation flight from Apiay, Colombia.

       The third charge contained three specifications, alleging that petitioner: (1) failed

to obtain required permission to enter and leave the restricted military section of the

Barranquilla airport; (2) directly disobeyed air traffic control directions during an

approach to Apiay, Colombia; and (3) failed to follow instructions to turn over his

weapon for secure storage during his stay in Apiay, Colombia.

       On November 18, 2005, the agency sustained the charges and determined that

removal was the appropriate penalty. Petitioner appealed his removal to the Board.

The AJ held a hearing and subsequently issued an initial decision sustaining all three

charges, but did not sustain specifications 1 and 2 of charge 2. The AJ sustained the

penalty of removal. The AJ found that Trainor’s testimony at the hearing was more

credible than petitioner’s version of the events, based on, among other things, Trainor’s

demeanor and the corroboration of many aspects of Trainor’s testimony by other

witnesses. Petitioner filed a petition for review with the full Board, and the Board denied

the petition for review.

       Petitioner timely appealed, and we have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(9).

                                      DISCUSSION

       Petitioner raises two arguments on appeal. First, petitioner argues that the AJ

erred by crediting Trainor’s testimony over petitioner’s own contradictory testimony. An

AJ’s credibility determinations, particularly when based in part on the demeanor of

witnesses, are “virtually unreviewable” by this court. Chambers v. Dep’t of Interior, 515




2007-3326                                3
F.3d 1362, 1370 (Fed. Cir. 2008); Hambsch v. Dep’t of Treasury, 796 F.2d 430, 436

(Fed. Cir. 1986). Applying this standard, we will not overturn credibility determinations

unless the testimony credited by the AJ is “inherently improbable or discredited by

undisputed evidence or physical fact.” Hanratty v. Dep’t of Transp., 819 F.2d 286, 288

(Fed. Cir. 1987) (quoting Hagmeyer v. Dep’t of Treasury, 757 F.2d 1281, 1284 (Fed.

Cir. 1985)). Petitioner’s attacks on the AJ’s credibility findings in this case fall well short

of satisfying this standard.

       Second, petitioner argues that the Board failed to consider possible

“undiagnosed medical issues,” Br. of Pet’r at 19, particularly a lack of “mental stability

and personality problems,” Reply Br. of Pet’r at 8, as a mitigating factor in determining

whether the penalty of removal was appropriate. Petitioner has not shown that he

argued before the Board that any past medical problems should mitigate the penalty.

Accordingly, petitioner has failed to show that this issue was preserved.

                                       CONCLUSION

       For the reasons set forth above, the determination of the Board is affirmed.

                                           COSTS

       No costs.




2007-3326                                  4
