Cheney v. Department of Justice ( 2008 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3316
REGINALD CHENEY,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
Lawrence A. Berger, Mahon & Berger, of Glen Cove, New York, for petitioner.
Allison Kidd-Miller, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Gregory G. Katsas, 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NOTE: This disposition is nonprecedential.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
2007-3316
REGINALD CHENEY,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
Petition for review of the Merit Systems Protection Board in CH0752070243-I-1.
__________________________
DECIDED: October 7, 2008
__________________________
Before MAYER, LINN and MOORE, Circuit Judges.
PER CURIAM.
Reginald Cheney appeals a final decision of the Merit Systems Protection Board
(Board) affirming his removal from the Drug Enforcement Administration (DEA). See
Cheney v. Dep’t of Justice, No. CH-0752070243-I-1 (M.S.P.B. June 7, 2007). We affirm
the final decision of the Board
Prior to his removal, Mr. Cheney was employed as the resident agent in charge
of the Cleveland resident office of DEA. Mr. Cheney was removed from DEA following
an investigation into allegations that he engaged in a course of conduct that included:
instructing his subordinates to issue subpoenas outside of the scope of business;
discussing an investigation into his conduct with DEA personnel after being instructed
not to do so; and making false statements to DEA internal affairs investigators. Mr.
Cheney appealed his removal to the Board. On June 7, 2007, the Board issued an
initial decision, which became final on July 12, 2007, affirming Mr. Cheney’s removal
based upon findings of: (1) misuse of office; (2) conduct unbecoming a DEA
Supervisory Special Agent; and (3) making false, misleading, and/or inaccurate
statements. The Board further found that Mr. Cheney’s misconduct was connected to
the efficiency of the service and that his removal did not exceed the tolerable limits of
reasonableness.
Mr. Cheney appeals the final decision, and we have jurisdiction under 28 U.S.C.
§ 1295(a). Our review is limited to setting aside findings or conclusions of the MSPB
that we find to be “(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).
Mr. Cheney asserts that the Board’s decision was not supported by substantial
evidence. We disagree. The Board’s conclusions were supported by physical evidence
as well as testimony from other DEA agents. To the extent that Mr. Cheney provided
testimony on his own behalf, the Board found this testimony to be neither truthful nor
credible, and “credibility determinations are virtually unreviewable.” Chambers v. Dep’t
of the Interior, 515 F.3d 1362, 1370 (Fed. Cir. 2008) (internal quotation marks omitted).
For the foregoing reasons, we affirm the final decision of the Board.
COSTS
No costs.
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