       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                   JUSTIN LEVY,
                     Petitioner

                           v.

    DEPARTMENT OF HOMELAND SECURITY,
                 Respondent
           ______________________

                      2017-1034
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. DE-1221-13-0216-W-3.
                ______________________

                Decided: April 12, 2017
                ______________________

   JUSTIN LEVY, Leonardo, NJ, pro se.

    KELLY A. KRYSTYNIAK, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., ALLISON
KIDD-MILLER.
                ______________________

    Before PROST, Chief Judge, DYK and HUGHES, Circuit
                        Judges.
2                                              LEVY   v. DHS



PER CURIAM.
    This is a whistleblower case. Justin Levy alleges that
he was terminated from his employment as a Customs
and Border Protection Officer at the Department of
Homeland Security in reprisal for making protected
whistleblower disclosures. The Merit Systems Protection
Board disagreed. Because the Board’s decision contains
no reversible error, we affirm.
                             I
    In 2010, Mr. Levy applied to be a Customs and Border
Protection Officer (CBPO) and selected New Jersey as his
preferred duty location. On April 15, 2011, Customs and
Border Protection (CBP) sent him an email inviting him
to change his preferred duty location to locations on the
southwest border, where it needed more CBPOs. Accord-
ing to Mr. Levy, throughout the application process, a
CBP employee named Jessica promised him that if he
accepted a position on the southwest border, he would
have “first dibs” to transfer to New Jersey once a position
became available. Appx. 20. Mr. Levy did not know
Jessica’s last name, job title, whether she held a supervi-
sory position, or whether she had authority to enter into a
verbal agreement. Mr. Levy was subsequently offered
and accepted a position in Nogales, Arizona and, based on
the assurances from Jessica, expected that he would be
able to transfer to New Jersey once a position became
available.
     However, during the application process, Mr. Levy re-
ceived and/or signed a number of documents informing
him that changes to his offered geographic location would
not be made, and that any request for a transfer would be
denied within the first two years of employment and could
still be denied after that. For example, an email sent to
all CBPO applicants inviting them to change their pre-
ferred duty location to locations on the southwest border
noted that “changing your geographic location will over-
LEVY   v. DHS                                             3



write any previous geographic location you selected and
once you receive a tentative offer for a specific geographic
location you will not be able to change locations.” Appx.
20 n.11. Mr. Levy also signed a new duty location policy
acknowledging that he would “be required to remain at
my duty location for a period of at least two (2) years from
the effective date of my assignment” and that he “may
request to be reassigned to another location after the end
of the two-year service requirement in the CBP Officer
position.” Appx. 23.
    In October 2011, Mr. Levy reported for duty in Arizo-
na. After serving three weeks there, he went to training
in Georgia and South Carolina. While there, he learned
that some CBPO positions in New Jersey had opened up
and been filled. Mr. Levy, believing his conversations
with Jessica constituted a verbal contract, complained to
numerous CBP officials about unlawful hiring practices.
    In April 2012, after his training had concluded,
Mr. Levy failed to report back to Arizona for his scheduled
duty. On May 5, 2012, he received notice that he had
been terminated for being absent without leave and
authoring e-mails that were disrespectful and unprofes-
sional.
    After exhausting his administrative procedures,
Mr. Levy filed an individual right of action appeal before
the Board, alleging that he was terminated in retaliation
for whistleblowing on CBP’s unlawful hiring practices.
The administrative judge found that Mr. Levy had met
the jurisdictional requirements of the Whistleblower
Protection Act of 1989 1 (WPA) and held a two-day hearing



1   All of the relevant events, including Mr. Levy’s termi-
nation, occurred before the December 27, 2012 effective
date of the Whistleblower Protection Enhancement Act of
2012. Pub. L. No. 112–199, § 202, 126 Stat. 1465, 1476.
4                                                LEVY   v. DHS



where Mr. Levy and five witnesses called by the agency
testified.
    On December 10, 2015, the Board issued its initial
decision denying Mr. Levy’s request for corrective action,
finding that Mr. Levy had not shown that he had made a
protected disclosure. On August 18, 2016, the Board
issued a final order affirming the administrative judge’s
decision to sustain the charges. This timely appeal fol-
lowed and we have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
                             II
    Our review of Board decisions is limited by statute.
Under 5 U.S.C. § 7703(c), we may reverse a Board deci-
sion only if we find the decision to be (1) arbitrary, capri-
cious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures
required by law; or (3) unsupported by substantial evi-
dence. Cleaton v. Dep’t of Justice, 839 F.3d 1126, 1128
(Fed. Cir. 2016). “Substantial evidence is more than a
mere scintilla of evidence, but less than the weight of the
evidence.” Jones v. Dep’t of Health & Human Servs., 834
F.3d 1361, 1366 (Fed. Cir. 2016) (quotation marks and
citations omitted).
    After reviewing the record and the Board’s decision,
we find no error and affirm the Board’s decision that Mr.
Levy failed to establish that he made a protected disclo-
sure.
    Although Mr. Levy argues that the Board dismissed
his case without considering all of the evidence, witness-
es, and documentation, absent specific evidence indicating
otherwise, we presume that all evidence contained in the
record at the time of a final determination has been
reviewed. Gonzales v. West, 218 F.3d 1378, 1381 (Fed.
Cir. 2000). Other than his disagreement with the Board’s
LEVY   v. DHS                                             5



final decision, Mr. Levy provides no such specific evi-
dence.
     To the extent Mr. Levy contends that the Board im-
properly credited Jessica’s testimony over his own, we
note that “an evaluation of witness credibility is within
the discretion of the Board and . . . such evaluations are
‘virtually unreviewable’ on appeal.” Kahn v. Dep’t of
Justice, 618 F.3d 1306, 1313 (Fed. Cir. 2010) (quoting
King v. Dep’t of Health & Human Servs., 133 F.3d 1450,
1453 (Fed. Cir. 1998)). Here, the Board explained that it
credited Jessica’s testimony because it was “straightfor-
ward” and consistent with her notes and job responsibili-
ties, in contrast to Mr. Levy’s testimony, which the Board
found to be “inherently improbable.” Appx. 22–24. Thus,
the Board did not abuse its discretion and substantial
evidence supports the Board’s finding that Mr. Levy made
no protected disclosures about illegal hiring practices that
would be protected by the WPA.
    We have considered Mr. Levy’s remaining arguments
but find them unpersuasive. Because the Board applied
the correct law and because its decision is supported by
substantial evidence, we affirm the Board’s decision.
                       AFFIRMED
    No costs.
