Clipse v. DHS 2016-1209

NOTE: This disposition is nonprecedential.
United States Court of Appeals

for the Federal Circuit
______________________
JOSEPH F. CLIPSE,
Petitioner
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent
______________________
2016-1209
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-14-0178-I-1.
______________________
Decided: April 7, 2016
______________________
JOSEPH F. CLIPSE, Okatie, SC, pro se.
SONIA MARIE ORFIELD, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., PATRICIA
M. MCCARTHY.
______________________
Before PROST, Chief Judge, MOORE and STOLL, Circuit
Judges.
CLIPSE
v. DHS
PER CURIAM.
Joseph F. Clipse appeals the final decision of the Merit Systems Protection Board (Board), which denied Mr.
Clipses petition for review and affirmed the administrative judges initial decision. In the initial decision, the
administrative judge affirmed the Department of Homeland Securitys action removing Mr. Clipse from his
position as Lead Law Enforcement Specialist. For the
reasons discussed below, we affirm.
BACKGROUND
Mr. Clipse began working at the Department of
Homeland Security (DHS or agency) on February 19,
2006 as a Law Enforcement Specialist at the Federal Law
Enforcement Training Centers (FLETC). At all times
relevant to this appeal, Mr. Clipse served as a Lead
Instructor in the Driver and Marine Division.
On July 22, 2013, Mr. Clipse was served a Notice of
Proposed Removal (Proposal) and supporting evidence
citing two charges: (1) failure to follow a written directive,
containing six specifications, and (2) lack of candor,
containing three specifications. On November 5, 2013,
the agency sustained both charges and Mr. Clipses removal became final. The charges arose from an investigation by DHS into numerous allegations that Mr. Clipse
had fraternized with three female students and a female
intern between 2007 and 2013 in violation of agency
policy.
Mr. Clipse appealed his removal to the Board, denying many of the allegations and arguing that removal was
inappropriate. Mr. Clipse also argued that his due process rights were violated by the lack of specificity in the
underlying specifications. In an initial decision, the
administrative judge sustained both charges, found that
removal was an appropriate penalty, and concluded that
Mr. Clipse had failed to prove that his due process rights
CLIPSE
v. DHS
were violated. Clipse v. Dept of Homeland Sec., AT-075214-0178-I-1 (M.S.P.B Apr. 13, 2015) (Initial Decision).
Mr. Clipse timely filed a petition for review of the initial
decision, and the Board issued a final decision denying
the petition and affirming the initial decision. Clipse v.
Dept of Homeland Sec., No. AT-0752-14-0178-I-1, 2015
WL 5718599 (M.S.P.B. Sept. 30, 2015) (Board Decision).
Mr. Clipse now timely appeals to us. We have jurisdiction
under 28 U.S.C. 1295(a)(9).
DISCUSSION
Our review of the Boards decision is limited by statute. We must affirm the Boards decision unless it is (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. Clipses appeal is primarily focused on what he
contends are erroneous credibility determinations made
by the administrative judge. He argues that, in every
instance where there was conflicting testimony, the
administrative judge improperly credited the testimony of
the witnesses against him over his testimony. However,
as we have stated, [t]he credibility determinations of an
administrative judge are virtually unreviewable on appeal. Bieber v. Dept of the Army, 287 F.3d 1358, 1364
(Fed. Cir. 2002). Indeed, as an appellate court, we cannot
set aside the administrative judges credibility determination unless we find it to be inherently improbable or
discredited by undisputed fact. Pope v. U.S. Postal Serv.,
114 F.3d 1144, 1149 (Fed. Cir. 1997). Here, Mr. Clipse
has not made that showing.
For example, Mr. Clipse argues that one of the students is not a credible witness because she changed her
story during the investigation and did not provide suffi-
CLIPSE
v. DHS
cient details or documentary evidence to corroborate her

position. The administrative judge, however, noted that
the student did not independently file a complaint against
Mr. Clipse, and, instead, only reported Mr. Clipses behavior when she was approached by investigators from the
Office of Professional Responsibility. Indeed, the administrative judge recognized that the student had no reason
to fabricate allegations against Mr. Clipse, given that her
testimony could potentially put her own law enforcement
career at risk. Moreover, the administrative judge found
the students testimony to be straightforward about
admittedly embarrassing facts. Initial Decision, slip op.
at 20. Finally, the administrative judge found that the
students testimony was corroborated by the testimony of
another witness, who the administrative judge also found
credible, in part because, unlike Mr. Clipse, the witness
had no motive to lie.
On the other hand, the administrative judge found
Mr. Clipses story to be so inherently improbable it
renders his testimony not credible. Id. As to Mr. Clipses
demeanor, the administrative judge stated that she was
unimpressed and came away with the impression that
he would change his story as necessary to further his
position. Id. at 22. The administrative judge considered
documentary evidence that Mr. Clipse asserted supported
his testimonyincluding a hotel receipt that he relied on
to show that he had been with his brother and not with
the student on a given weekendbut found that, on
balance, the students version of events was more likely to
be true than Mr. Clipses version. Id. at 2223.
Similarly, with respect to the other three women, the
administrative judge properly and thoroughly considered
the necessary factors in making the credibility determinations, and found that among the multiple conflicting
testimonies, the testimony of the witnesses testifying
against Mr. Clipse were more credible than that of Mr.
CLIPSE
v. DHS
Clipse. Because the administrative judges determinations are neither inherently improbable nor discredited by
undisputed fact, we, like the Board, give them deference.
Mr. Clipse also attempts to cast doubt on the testimony of the female intern by claiming that the agency tampered with evidence. Mr. Clipse argues that the agency
presented an incomplete and inaccurate text log of messages between him and the female intern, and that many
of the messages which would have supported his story
were altered or deleted. Even if that were truewhich
the administrative judge found was unlikelythe administrative judge only considered the text messages that
were not in contention and found that they involved
playful flirtatious banter and were certainly not training
related. Initial Decision, slip op. at 26, 28.
Finally, Mr. Clipse argues that his due process rights
were violated because some of the specifications underlying the charges were impermissibly vague. However, as
the administrative judge noted, [a]ll of the specifications
provide a great deal of specific information [that Mr.
Clipse] could have addressed. Further, the agency produced a voluminous amount of investigatory documents
and [reports of investigation] upon which it relied. Id. at
3536. We agree with the administrative judge and the
Board and thus conclude that Mr. Clipse did not prove
that his due process rights were violated.
For the foregoing reasons, we affirm the Boards decision.
AFFIRMED
COSTS
Each party shall bear their own costs.

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NOTE: This disposition is nonprecedential.

United States Court of Appeals

cient details or documentary evidence to corroborate her

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