Note: This disposition is nonprecedential.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NOTE: This disposition is nonprecedential.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-