       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                KELLY S. JENNINGS,
                    Petitioner,

                           v.
      SOCIAL SECURITY ADMINISTRATION,
                 Respondent.
              __________________________

                      2009-3127
              __________________________

   Petition for review of the Merit Systems Protection
Board in CB7521070026-T-1.
              __________________________

              Decided: January 19, 2011
              __________________________

   NORMAN JACKMAN, Jackman & Roth LLP of Lincoln,
New Hampshire, argued for petitioner.

    ELIZABETH M. HOSFORD, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respon-
dent. On the brief were AUSTIN M. FULK, Trial Attorney,
TONY WEST, Assistant Attorney General, and BRYANT M.
SIMKIN, Assistant Director.
JENNINGS   v. SSA                                       2


                    __________________________

Before BRYSON, PLAGER, and CLEVENGER, Circuit Judges.
CLEVENGER, Circuit Judge.


    Petitioner Kelly S. Jennings appeals from the final
decision of the Merit Systems Protection Board (“Board”)
sustaining his removal from the Social Security Admini-
stration.     Jennings v. Soc. Sec. Admin., No.
CB7521070026-T-1 (January 6, 2009). We affirm.

                                I

    Jennings was employed by the Social Security Ad-
ministration (“agency”) as an Administrative Law Judge
(“ALJ”) in the agency’s Atlanta North Office of Disability
Review and Adjudication. Jennings was appointed to his
position on July 24, 1994 pursuant to 5 U.S.C. § 3105. At
the time, Jennings was a commissioned officer in the
United States Army Reserve.

    In an order dated December 31, 2002, the Department
of the Army ordered Jennings to report to Fort McPher-
son, Georgia for active duty. The order noted that
Jennings was being activated for one year “unless sooner
released or unless extended” and expected to report on
January 2, 2003. Jennings’ tour of active duty was subse-
quently extended through December 31, 2005 by orders
dated December 8, 2003, February 24, 2004, and October
27, 2004. Meanwhile, Jennings continued his employ-
ment as a full-time ALJ with the agency.

    Jennings was deployed to Kuwait from April 2003 to
July 2003. Upon his return, Jennings was ordered to the
Army War College in Harrisburg, Pennsylvania for 15
3                                           JENNINGS   v. SSA


days. Jennings requested appropriate leave from the
agency and was granted leave for these absences. Simi-
larly, Jennings requested and received leave for tempo-
rary duty stations in Florida, Kuwait, and Qatar in 2004
and 2005. Unbeknownst to the agency, when Jennings
was not deployed to other locations from January 2003
through December 2005, he remained on active duty at
Fort McPherson.      Jennings spent nearly every non-
deployed day during this period working at Fort McPher-
son from 6:00 A.M. until approximately 3:00 or 3:30 P.M.
Jennings then traveled to the agency’s Atlanta North
Office to work up to six hours before taking work home
with him to complete in the evenings and on weekends.

    This case arises, in part, because Jennings signed a
certification when he started working at the agency
agreeing to work a fixed tour of duty from 8:00 A.M. to
4:30 P.M. Monday through Friday in the Atlanta North
Office. Aside from three months in 2003 when Jennings
was permitted to work remotely as part of the agency’s
Quality Assurance Review Project, Jennings’ certification
required him to be in attendance at the office during his
fixed hours. Specifically, the fixed tour required Jennings
to be available in the office for the core hours from 9:30
A.M. until 3:00 P.M. unless conducting a hearing. The
undisputed facts demonstrate that Jennings was rarely, if
ever, present in the Atlanta North Office during the core
hours.

    After receiving an anonymous report in March 2006
regarding Jennings’ failure to work his fixed tour of duty
due to his dual employment, the agency’s Office of the
Inspector General (“OIG”) opened an investigation. The
OIG completed its investigation in November 2006 and
concluded that Jennings simultaneously worked for the
agency and the United States Army and received pay
JENNINGS   v. SSA                                      4


from both. The OIG further concluded that Jennings gave
false statements to federal agents during an interview.
The findings were submitted to Jennings’ supervisors at
the agency.

    Upon receiving the OIG report, Regional Chief Judge
Garmon, Jennings’ second-line supervisor, had his office
begin its own investigation. Judge Garmon personally
interviewed Jennings on April 17, 2007 at the Atlanta
North Office. An ALJ union local area representative,
Judge Auslander, was also present for the interview.
During an interview lasting approximately 30 minutes,
Judge Garmon asked Jennings 17 questions off of a
prepared form and “wrote down the pertinent parts that
applied to the questions that I was asking him.” Within a
few days of the interview Judge Garmon prepared a
formal summary of Jennings’ answers.

     Section 7521 provides that an agency ordinarily may
not remove or reduce the pay of an administrative law
judge without a Board hearing and determination that
the action is for good cause. 5 U.S.C. § 7521. Thus, on
August 14, 2007, the agency filed a formal complaint
against Jennings with the Board seeking his removal.
The agency charged Jennings with: (1) Failure to Fully
Disclose His Active Duty Status; (2) Improper Dual Em-
ployment; (3) Lack of Candor; (4) Failure to Follow the
Agency’s Time and Attendance Procedures; and (5) Fail-
ure to Follow the Agency’s “Flexiplace” Procedures. On
August 20, 2007, the Board assigned Judge Cates of the
National Labor Relations Board as the presiding judge. A
hearing was held on March 17 and 18, 2008 after the
completion of discovery by both parties. On June 16,
2008, Judge Cates concluded that the agency established
all of the charges by a preponderance of the evidence and
affirmed the agency’s removal of Jennings. On January 6,
5                                           JENNINGS   v. SSA


2009, the Board denied Jennings’ petition for review and
the initial decision of Judge Cates became the final deci-
sion of the Board. Jennings appeals.

                             II

    We may set aside a decision of the Board only when it
is: “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the 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). We review matters of law
without deference, and matters of fact to determine if
substantial evidence supports the Board’s findings.

                            III

    Jennings does not challenge the legal sufficiency of
the charge of failure to disclose his active duty status.
Instead, he renews on appeal his factual argument made
to the Board claiming that he disclosed his active duty
status by providing Judge Spivey, the Atlanta North
Hearing Office Chief Judge, with all of his military orders.
Jennings argues that the Board erred in failing to credit
both the documentary and testimonial evidence he pro-
vided to demonstrate that the agency was aware of his
active duty status. We review the Board’s factual deter-
mination on this issue for substantial evidence. 5 U.S.C.
§ 7703(c).

    A careful review of the record supports the Board’s
decision on this charge. Judge Spivey specifically testified
that he was not aware that Jennings was on continuous
active duty from January 2003 through December 2005.
Jennings makes much of the fact that although Judge
Spivey could not recall being provided military orders by
JENNINGS   v. SSA                                        6


Jennings, Judge Spivey acknowledged at the hearing that
it could have happened. However, this possibility does
not counter Judge Spivey’s specific testimony that he was
not aware that Jennings was reporting daily to Fort
McPherson for active duty during the three years in
question. Further, Jennings admitted on cross examina-
tion that he previously testified at his deposition that he
could not recall whether he gave the 2003 orders to Judge
Spivey. Jennings also testified that he could not recall if
he gave Judge Spivey a copy of his February 23, 2004 or
October 27, 2004 orders. The evidence cited by Jennings
to prove he provided his orders to Judge Spivey is contra-
dicted by other evidence and at best inconclusive.

     Moreover, the ALJ noted in his decision that Jennings
appeared angry at the hearing and seemed to believe that
the dual employment and related charges were simple
technicalities. He stated that Jennings found it very
difficult to give direct responses to questions and he had
to caution Jennings not to give non-responsive and eva-
sive answers. As a result, the ALJ concluded that
“Jennings attempted to mold and shape his testimony to
achieve a particular end at the expense of the complete
full truth.” He thus did not credit Jennings’ testimony
and found that Jennings did not fully disclose to the
agency his active duty status with the United States
Army.

    Our review of factual determinations is limited by
statute to assessing whether substantial evidence sup-
ports the Board’s findings. Further, the Board’s credibil-
ity determinations are “virtually unreviewable” on appeal.
Chambers v. Dep’t of the Interior, 515 F.3d 1362, 1370
(Fed. Cir. 2008). Under Hillen v. Department of the Army,
35 M.S.P.R. 453, 458 (1987), several factors guide an
administrative judge in deciding which of conflicting
7                                           JENNINGS   v. SSA


testimony to credit. The ALJ noted in his decision that he
“carefully observed the demeanor of the witnesses as they
testified and [] relied on their demeanor in determining
the credibility of their respective testimony.” Thus, we
must give deference to the ALJ’s conclusion that Jennings
did not fully disclose his active duty status to the agency
as there is no testimony to demonstrate otherwise aside
from Jennings’ own testimony.

    Finally, Jennings points to additional documents that
he claims the Board ignored. Even ignoring the lack of
reliability of these documents, they do not demonstrate
that Jennings disclosed his continuous active duty status.
Rather, the documents cited by Jennings merely reflect
facts already conceded by the agency. It is agreed by the
parties that the agency was aware that Jennings was
periodically deployed during the period in question and
that Jennings took appropriate leave during those de-
ployments. The time records and leave slips for that
period do not demonstrate that the agency was aware
that Jennings remained in an active duty status at Fort
McPherson during the remainder of the period. We
therefore must affirm the Board’s decision on this charge.

                            IV

    On the second charge of improper dual employment,
Jennings does not dispute the evident fact that he was
working a full time ALJ job while on active duty in the
Army and engaged in dual employment.                Instead,
Jennings’ arguments on appeal target the agency’s posi-
tion that his dual employment was improper. Jennings
correctly points out that the agency fails to cite a statute
or regulation directly on point that prohibits full time
agency employment while serving on active military duty.
With no statutory target prohibiting dual employment to
JENNINGS   v. SSA                                       8


shoot at, Jennings instead carefully distinguishes each
dual compensation statute from his situation. The agency
concedes that there is no statutory bar to Jennings’ dual
employment, but responds that the record contains unre-
butted testimony showing an agency policy that prohibits
such dual employment.

    At the administrative hearing, a veteran agency Hu-
man Resource Specialist testified that the agency’s policy
prohibiting dual active military and full time civilian
employment is based on decisions of the Comptroller
General of the United States and on guidance provided by
the Office of Personnel Management (“OPM”). Our review
of these decisions and OPM’s public notifications supports
this testimony and demonstrates that there is a basis for
the agency’s conclusion that such dual employment is
improper. It is clear from the record that Jennings was
not able to satisfy his agency fixed tour of duty while
simultaneously serving on active duty at Fort McPherson.

    The agency made clear that it was basing its charge
on long standing agency policy, and not on statutory or
regulatory support, so Jennings’ attempts to attack the
agency’s position based upon non-applicable statutes
relating to dual compensation, not dual employment, miss
the mark. We therefore affirm the Board’s decision that
Jennings engaged in improper dual employment.

                            V

    Of the remaining charges, Jennings criticizes only the
lack of candor charge as failing to be supported by sub-
stantial evidence. In particular, Jennings notes that his
interview with Judge Garmon was not recorded or directly
transcribed and that he was not afforded the opportunity
to review the summary answers before the results of the
9                                           JENNINGS   v. SSA


interview were submitted to his supervisor. While we
question the judgment of the agency’s decision not to
record or directly transcribe Jennings’ answers during the
interview, we find substantial evidence to support the
Board’s decision that Jennings demonstrated a lack of
candor in his responses.

    Jennings argues that Judge Garmon’s summary an-
swers ascribe to him statements that were actually made
by Judge Auslander, the union representative. Judge
Auslander testified before the Board that the summary
answers reflect Judge Aulander’s answers to questions
five and seven. The lack of candor charge is not based on
answers to either of those questions, however, so any
error in the summary answers to those questions is ir-
relevant.

    As to the three questions that form the basis for the
three specifications of the lack of candor charge—
questions one, four, and fourteen—Judge Auslander
testified that the summary answers do not reflect the
entire answer that Jennings provided. Question one,
which corresponds to the first specification, asked Mr.
Jennings if he was on active duty from January 2003
through December 2005. Although the summary answers
reflect that Jennings never directly answered that ques-
tion, Judge Auslander testified that Jennings gave a
direct answer after being asked a follow-up question.
Questions four and fourteen correspond to the second and
third specifications. Judge Auslander testified that he did
not believe that the summary answers reflect the entirety
of Jennings’ answers to those two questions, but he did
not indicate what information was omitted. Thus, Judge
Auslander’s testimony that the summary answers to
questions four and fourteen were incomplete provided
nothing to complete the record or to contradict Judge
JENNINGS   v. SSA                                        10


Garmon’s testimony that Jennings was not fully candid
and truthful in his answers to those questions.

    As previously noted, our review of credibility determi-
nations is limited and the Board’s decision reflects a clear
determination that Judge Garmon’s testimony regarding
the interview appeared more candid and truthful than
that of Jennings. Further, Jennings specifically tempered
his criticisms of the interview process by testifying that
several of the summary answers “sound[ed] like some-
thing that I would have said” or “sound[ed] generally
[like] what I probably would have said.” Thus, we affirm
the Board’s decision on the lack of candor charge.

                            VI

     Jennings also claims that the penalty of removal was
improper. In particular, though Jennings concedes that
he failed to follow the agency’s “flexiplace” procedures,
including failing to submit a written election to subscribe
to the program, he argues that his removal for the charge
of his failure to follow “flexiplace” procedures shows that
he was subjected to disparate treatment by the agency.
Jennings points to a September 2007 OIG document titled
Management Advisory Report: Adequacy of the Adminis-
trative Practices in the Atlanta North Office of Disability
Adjudication and Review and notes that the OIG found
three agency ALJs in the Atlanta North Office were
failing to properly follow “flexiplace” procedures. He
argues that the agency’s failure to discipline these ALJs
demonstrates that his removal is an inappropriate pen-
alty for the charge.

    Our review of the record and the agency’s discovery
responses shows that Jennings’ disparate treatment
argument is flawed. The ALJs mentioned in the report
11                                          JENNINGS   v. SSA


were discussed in the context of many administrative
failures discovered by the OIG’s audit of the Atlanta
North Office. In addition to the “flexiplace” issues, the
audit revealed that many other internal controls and
administrative procedures were not functioning as in-
tended. However, the administrative failures cited in the
report do not suggest any intentional abuse of the process
or an attempt to circumvent the internal controls.

    Here, Jennings was charged with his failure to follow
the “flexiplace” procedures in conjunction with his deci-
sion to work as an agency ALJ while serving on active
duty in the military. The charge arose because Jennings
attempted to use the “flexiplace” program as an answer to
why he was absent from the Atlanta North Office during
the required core hours. However, his failure to submit
the required paperwork and abide by the procedures of
the “flexiplace” program supports the agency’s position
that it did not consider him to be enrolled in the program.
If Jennings was attempting to participate in the program,
as he claims, then his failure to follow the proper proce-
dures is just an additional factor warranting removal
along with the more serious charges of his failure to
disclose his active duty status and continuous dual em-
ployment. There is no evidence in the record demonstrat-
ing that the ALJs mentioned in the Atlanta North Office
audit are similarly situated to Jennings and we find no
disparate treatment requiring us to remand for reconsid-
eration of the removal decision.

    Jennings also argues that the agency failed to con-
sider the factors laid out in Douglas v. Veterans Admini-
stration, 5 M.S.P.R. 313 (1981), when requesting his
removal. However, the agency’s Statement of Charges
and Specifications need not analyze the Douglas factors.
Instead, it is the Board’s responsibility to make the de-
JENNINGS   v. SSA                                        12


termination of whether good cause exists for removal. See
5 U.S.C. § 7521(a) (“An action may be taken against an
administrative law judge appointed under section 3105 of
this title by the agency in which the administrative law
judge is employed only for good cause established and
determined by the Merit Systems Protection Board on the
record after opportunity for hearing before the Board.”).
The Board found that Jennings’ “willful conduct of long
duration and intentional concealment from and failure to
fully disclose the nature of his military obligations to the
agency constitutes deceit for personal gain and warrants
his removal.” We find no fault with the Board’s conclu-
sion that removal is the appropriate penalty in this case.

                            VII

    Finally, Jennings complains about the agency’s post-
removal determinations to place him on leave without pay
for the period in question and seize funds from his retire-
ment accounts. As those issues were not before the Board
in this matter, they are not properly before us. Thus, we
decline to express an opinion on these actions. Similarly,
Jennings’ remaining arguments about the ALJ, including
attacking the ALJ’s qualifications and claiming a conflict
of interest, were not timely raised before the Board and
are thus waived. All remaining motions are denied as
moot.

                          COSTS

   No costs.
