                       Note: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                        07-3014



                               PATRICK N. SWEENEY,

                                                             Petitioner,

                                           v.


                     DEPARTMENT OF HOMELAND SECURITY,

                                                             Respondent.


       Patrick N. Sweeney, of Spring, Texas, pro se.

        Joan M. Stentiford, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Peter D. Keisler, Assistant Attorney General, and Deborah A. Bynum,
Assistant Director.

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                         NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                         07-3014


                                PATRICK N. SWEENEY,

                                                 Petitioner,

                                            v.

                     DEPARTMENT OF HOMELAND SECURITY,

                                                 Respondent.

                           ____________________________

                               DECIDED: May 14, 2007
                           ____________________________


Before NEWMAN, LOURIE, and GAJARSA, Circuit Judges.

PER CURIAM.

                                       DECISION

      Patrick N. Sweeney (“Sweeney”) appeals from the final decision of the Merit

Systems Protection Board (the “Board”) affirming the decision of the U.S. Department of

Homeland Security to suspend him from his position as special agent for thirty days due

to his failure to follow instructions and his failure to properly secure evidence. Sweeney

v. Dep’t of Homeland Sec., DA-0752-05-0534-1-2 (M.S.P.B. Aug. 29, 2006) (“Final

Decision”). We affirm.

                                     BACKGROUND

      Sweeney was employed as a senior special agent for the Immigration and

Customs Enforcement, an agency within the U.S. Department of Homeland Security
(“DHS”) (“agency”). On January 13, 2005, the Assistant Special Agent in Charge, Gene

D. Lowery, proposed Sweeney’s removal on two charges: first, failure to follow

instructions on numerous occasions; and second, failure to properly secure evidence.

On June 30, 2005, the agency sustained both charges, and imposed a lesser penalty of

a thirty-day suspension without pay, effective July 5, 2005. Those charges arose from

certain instances involving Sweeney’s unauthorized interaction with a confidential

informant (“CI”), a moiety claim 1 that Sweeney was instructed to complete but did not,

and certain evidence relating to a child pornography investigation that was left

unsecured in Sweeney’s desk.

       Special agents are required to abide by certain rules as set forth in the Special

Agents Handbook. Chapter 41 of the Handbook states that “controlling agents will not

meet or debrief informants without another law enforcement officer in attendance unless

they obtain supervisory approval.” Sweeney v. Dep’t of Homeland Sec., DA-0752-05-

0534-1-2, slip op. at 2 (M.S.P.B. May 5, 2006).      On February 17, 2004, however,

Sweeney met with a CI involved in a particular case, alone and without the permission

of his supervisors. Id., slip op. at 2-3.

       On March 22, 2004, Sweeney received specific instructions from his supervisor

to refrain from having any contact with the aforementioned CI. Id. at 3. However, on

April 6, 2004, Sweeney disregarded that instruction and met with the CI in the parking

lot of the DHS building. Id. at 3-4. After Sweeney’s supervisor, Jeffrey S. Coffman,

witnessed Sweeney’s meeting with the CI, Coffman telephoned Sweeney and ordered

him to immediately report to his office. Although Sweeney agreed to follow that order,

       1
           A moiety claim refers to payments that the DHS provides to confidential



07-3014                                     -2-
he proceeded to walk away from the DHS building and continue his conversation with

the CI.   Additionally, on two separate occasions, April 5, 2004 and May 17, 2004,

Sweeney had telephone conversations with the CI, notwithstanding the order instructing

him not to.

       As to the incident concerning the moiety claim, Sweeney was instructed to

complete the claim in February 2004. After failing to prepare it, Sweeney received

additional instructions to complete the claim by the close of business on March 26,

2004. Sweeney failed to meet that deadline, and Coffman was required to assign the

claim to another employee who ultimately prepared the claim.

       Regarding the incident involving the unsecured evidence, the agency requires its

employees to follow specific procedures designed to protect the chain of custody of

evidence. On March 26, 2004, Sweeney left two compact discs containing evidence

relating to a child pornography investigation in an unsecured drawer of his desk, which

violated those procedures.    Coffman discovered the discs and confirmed with the

Forensic Computer Special Agent that the discs contained images of child pornography.

On March 29, 2004, Coffman prepared a memorandum detailing his findings.

       Based on those events, the agency filed the aforementioned charges against

Sweeney.      After the agency sustained the charges and imposed a thirty-day

suspension, Sweeney appealed the agency’s decision to the Board. Sweeney admitted

that he met with the CI and spoke to him on the telephone in direct contravention of his

orders. Sweeney argued, however, that he believed he had permission from another

supervisor to meet with the CI and that there was nothing wrong with speaking to him



informants who provide an agency with evidence or information. Resp’t Br. at 9.


07-3014                                -3-
over the phone because he was helping him with a “customs” matter. In addition,

Sweeney asserted that he was unaware of deadlines concerning the moiety claim, and

was also unaware that the discs that were found in his desk contained child

pornography. In addition, Sweeney raised certain affirmative defenses.

      On May 5, 2006, Administrative Judge (“AJ”) sustained the agency’s charges and

the penalty of a thirty-day suspension.       The AJ determined that the DHS had

established by preponderant evidence that Sweeney repeatedly failed to follow

instructions and failed to properly secure evidence.      Id. at 2-10.   In reaching that

determination, the AJ found Sweeney to be less credible than the agency’s witnesses

and found that Sweeney had not provided any evidence to corroborate his assertions.

Id. at 3, 5, 8, 10. In addition, the AJ rejected Sweeney’s affirmative defenses. In

particular, the AJ found that Sweeney failed to prove that the action by the agency was

taken in retaliation for purported whistleblowing activities and that the agency committed

harmful error. Lastly, the AJ concluded that the penalty imposed by the agency was

reasonable and promoted the efficiency of service. Id. at 15.

      Sweeney sought review by the full Board, the Board denied his petition, and the

AJ’s decision accordingly became the final decision of the Board.          See 5 C.F.R.

§ 1201.113(b) (2006). Sweeney timely appealed to this court. We have jurisdiction

pursuant to 28 U.S.C. § 1295(a)(9).

                                      DISCUSSION

      The scope of our review in an appeal from a decision of the Board is limited. We

must affirm the Board’s decision unless it was “(1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law; (2) obtained without procedures




07-3014                                 -4-
required by law, rule, or regulation having been followed; or (3) unsupported by

substantial evidence.” 5 U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd.,

331 F.3d 1307, 1311 (Fed. Cir. 2003). We review without deference the Board’s legal

conclusion on a question of jurisdiction. Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313,

1316 (Fed. Cir. 1998).

      On appeal, Sweeney argues that the AJ committed multiple errors, including

exhibiting bias and prejudice during the proceedings and failing to make proper factual

and legal determinations. Sweeney further asserts that the Board ignored clear error

and new evidence in denying his petition for review. The government responds that

substantial evidence supports the Board’s decision, that Sweeney’s challenges to the

AJ’s credibility determinations are not reviewable by this court, and that Sweeney’s

remaining contentions are unsupported and without merit.

      We agree with the government that the Board properly sustained both charges.

The AJ’s conclusion that Sweeney failed to follow instructions was supported by

substantial evidence. As for the first charge, the record shows that Sweeney admitted

that he failed to follow instructions by speaking to the CI alone and not completing the

moiety claim. The AJ credited the testimony of several agency witnesses, including

Coffman and David R. Quiles, the Assistant Special Agent in Charge. Both witnesses

testified that Sweeney continued to carry on a conversation with the CI in the parking lot

and spoke to the CI over the telephone, despite receiving instructions to the contrary.

With regard to the moiety claim, the AJ again credited the testimony of Coffman, as well

as the agent who was later assigned the moiety claim. Both testified that Sweeney

failed to meet the deadline for completing the moiety claim. As for the second charge of




07-3014                                 -5-
failing to properly secure evidence, the AJ’s determination that Sweeney left evidence in

his desk, in a manner that was contrary to the agency’s procedures and guidelines, was

supported by Coffman’s testimony. In addition, we find that substantial evidence exists

in the record to support the AJ’s determinations concerning Sweeney’s affirmative

defenses.

       Moreover, in assigning error to the AJ’s factual determinations, Sweeney

essentially challenges the credibility determinations made by the AJ. Because the AJ is

in the best position to evaluate credibility, his credibility determinations are “virtually

unreviewable” on appeal, see Hambsch v. Dep’t of the Treasury, 796 F.2d 430, 436

(Fed. Cir. 1986), and will not be disturbed unless inherently improbable, discredited by

undisputed evidence, or contrary to physical facts, Hanratty v. Dep’t of Transp., 819

F.2d 286, 288 (Fed. Cir. 1987). Sweeney has not met that high burden to disturb the

AJ’s credibility determinations.   Accordingly, we find no basis to disturb the AJ’s

determination that Sweeney failed to follow instructions and failed to properly secure

evidence.

       In addition, we find Sweeney’s argument that the AJ exhibited bias and prejudice

equally unpersuasive. In support of his argument, Sweeney alleges that the AJ was

biased based on his failure to inquire about “witness tampering.”            According to

Sweeney, the government’s counsel “tampered” with a potential witness and, because

of that, he did not call that witness to corroborate his testimony.       That argument,

however, was not raised below, and thus will not be considered on appeal. Wallace v.

Dep’t of the Air Force, 879 F.2d 829, 832 (Fed. Cir. 1989) (“[o]rdinarily, appellate courts

refuse to consider issues not raised before an administrative agency). Even if it were




07-3014                                 -6-
properly before us, however, that assertion is unsupported by the record.            Thus,

contrary to Sweeney’s assertion that the AJ exhibited bias through “extrajudicial conduct

rather than any acceptable legitimate conduct,” the AJ considered and weighed the

evidence of record and explained his reasoning in a thorough and detailed opinion.

       Lastly, we disagree with Sweeney’s contention that the Board erred in denying

his petition for review. Sweeney argues that the Board failed to consider “significant

new evidence, error, bias, and non-judicial criminal acts by [the] AJ.” With regard to

allegations of wrongdoing by the AJ, those contentions have already been rejected. As

for purported new evidence, Sweeney refers to certain memoranda that are only

tangentially related, if related at all, to the specific charges at issue.   Although not

entirely clear, Sweeney appears to rely on certain documents that concern a separate

matter—namely, the revocation of Sweeney’s authority to carry a firearm. We therefore

find that the Board correctly determined that Sweeney failed to present “significant new

evidence” to warrant reconsideration of the AJ’s initial decision. Final Decision, slip op.

at 1. As such, this argument likewise fails.

       We have considered the numerous remaining arguments Sweeney raised in his

brief and found none that justify a reversal. Accordingly, we conclude that the Board did

not err in affirming his suspension. Because the Board’s decision was supported by

substantial evidence and not arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with the law, we affirm.




07-3014                                 -7-
