NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2007-3147 

GARY B. LAIR, 

Petitioner, 

v. 

DEPARTMENT OF HOMELAND SECURITY, 

Respondent. 

Ronald H. Tomkin, of Houston, Texas, argued for petitioner. 

A. Bondurant Eley, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, argued for respondent. With 

her on the brief were Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson, 

Director, and Todd M. Hughes, Deputy Director. Of counsel on the brief was Thomas F. 

Muther, Jr., Deputy Chief Counsel, United Stated Immigration and Customs Enforcement, 

of Las Vegas, Nevada. 

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NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

 

 

2007-3147 

GARY B. LAIR, 

 Petitioner, 

v. 

DEPARTMENT OF HOMELAND SECURITY, 

 Respondent. 

 

 DECIDED: December 14, 2007 

Before SCHALL and MOORE, Circuit Judges, and MORAN, Senior District Judge.

*

SCHALL, Circuit Judge. 

 DECISION 

 Gary B. Lair was employed as a Senior Special Agent by U.S. Immigration and 

Customs Enforcement (”agency”), a component of the Department of Homeland 

Security. In this appeal, he petitions for review of the final decision of the Merit Systems 

 *

 Honorable James B. Moran, Senior District Judge, United States District 

Court for the Northern District of Illinois, sitting by designation. 
Protection Board (“Board”) that sustained the action of the agency removing him from 

his position. Lair v. Dep’t of Homeland Sec., No. DC-0752-06-0563-I-1 (M.S.P.B. Jan. 

30, 2007) (“Final Decision”). We affirm. 

 DISCUSSION 

 I. 

 Mr. Lair was removed from his position based upon (i) the charge that he used 

his position of authority for other than official purposes and (ii) the charge of 

misrepresentation. The first charge contained the following specifications: (1) that Mr. 

Lair contacted officers of U.S. Customs and Border Protection and interjected himself 

into their investigation of the immigration status of Nelly Rivero, a Venezuelan national; 

(2) that, without an official basis for doing so, he wrote U.S. Citizenship and Immigration 

Services (“CIS”) requesting that Ms. Rivero be given a six-month extension of her visa; 

and (3) that, on two separate occasions, he employed Ms. Rivero, who was not legally 

allowed to work in the United States. The charge of misrepresentation was based on 

the allegation that when Mr. Lair wrote CIS requesting an extension of Ms. Rivero’s 

visa, he falsely stated that Ms. Rivero was his wife’s cousin. 

Mr. Lair appealed his removal to the Board. Following a hearing, the 

administrative judge (“AJ”) to whom the appeal was assigned issued an initial decision 

in which he found that the agency had proved the charges against Mr. Lair by a 

preponderance of the evidence, that the penalty of removal was reasonable, and that it 

promoted the efficiency of the service. See generally Lair v. Dep’t of Homeland Sec., 

No. DC-0752-06-0563-I-1 (M.S.P.B. Oct. 31, 2006) (“Initial Decision”). The AJ therefore 

sustained the agency’s action. Id. at 14. The Initial Decision became the final decision 

2007-3147 2
of the Board when the Board denied Mr. Lair’s petition for review for failure to meet the 

criteria for review set forth at 5 C.F.R. § 1201.115(d). Final Decision at 2. This appeal 

followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). 

 II. 

 Our scope of review in an appeal from a decision of the Board is limited. 

Specifically, we must affirm the Board’s decision unless we find it to be arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained 

without procedures required law, rule, or regulation having been followed; or 

unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Kewley v. Dep’t of 

Health & Human Servs., 153 F.3d 1357, 1361 (Fed.Cir. 1998). 

 On appeal, Mr. Lair argues that the AJ abused his discretion in not allowing 

William A. Merchant, a witness proffered by Mr. Lair, to testify. According to Mr. Lair, 

Mr. Merchant would have testified as an expert witness concerning the procedures of 

CIS (presumably in connection with specification 2 of the abuse of position/authority 

charge). Mr. Lair states that Mr. Merchant also would have testified as to conversations 

with Mr. Lair and his wife regarding Ms. Rivero and as to Mr. Lair’s reputation for 

truthfulness and integrity. Mr. Lair also argues that the AJ erred in not allowing his 

counsel to cross-examine the agency’s deciding official on the Douglas factors, see

generally Douglas v. Veterans Admin., 5 M.S.P.R. 280 (1981), and in relying on 

contradictory written statements of Ms. Rivero relating to whether she had worked for 

Mr. Lair. In addition, Mr. Lair contends that the AJ’s finding that the agency had proved 

the charges against him by a preponderance of the evidence is not supported by 

2007-3147 3
substantial evidence. Finally, Mr. Lair argues that the AJ was biased against him and 

should have recused himself from the appeal. We address these contentions in turn. 

 III. 

 We review the AJ’s decision to exclude the testimony of Mr. Merchant for an 

abuse of discretion. See Guise v. Dep’t of Justice, 330 F.3d 1376, 1379 (Fed.Cir. 

2003). Turning to Mr. Lair’s arguments concerning Mr. Merchant’s testimony, the 

procedures of CIS were not an issue in the case, so no testimony in that regard was 

necessary. At the same time, there was no reason for the AJ to receive testimony from 

Mr. Merchant concerning conversations he had with Mr. Lair and his wife and 

concerning Mr. Lair’s reputation. Aside from the fact that conversations between Mr. 

Merchant and the Lairs were not relevant, both Mr. and Mrs. Lair testified at the hearing. 

Under these circumstances, the AJ was in the best position to judge their credibility. 

 Neither did the AJ abuse his discretion in connection with the testimony of the 

agency’s deciding official. The record reveals no denial of necessary latitude in 

connection with the questioning of the deciding official by Mr. Lair’s counsel. An AJ 

possesses significant discretion to determine what evidence he or she will permit to be 

presented. See Lowder v. Dep’t of Homeland Sec., 504 F.3d 1378, 1383 (Fed. Cir. 

2007). Here, the AJ acted well within his discretion in limiting the scope of crossexamination of the deciding official. 

At the same time, we see no error with regard to the admission of Ms. Rivero’s 

statements. The AJ admitted hearsay testimony contained in a sworn declaration by 

Ms. Rivero after having heard testimony from two witnesses to the declaration who 

asserted that Ms. Rivero appeared confident and credible when making the declaration, 

2007-3147 4
notwithstanding the fact that the sworn declaration contradicted an earlier unsworn 

statement she had given in which she denied ever having been employed by Mr. Lair. 

Initial Decision at 7–8. Mr. Lair faults the AJ’s decision to credit the sworn statement 

over the earlier unsworn statement in view of the fact that, in the sworn statement, Ms. 

Rivero contradicted her earlier unsworn statement that she had not worked for Mr. Lair. 

Credibility determinations are virtually unreviewable on appeal, however, Frey v. Dep’t 

of Labor, 359 F.3d 1355, 1361 (Fed. Cir. 2004), and we see no error in the AJ’s 

determination that a sworn statement supported by two witnesses is more credible than 

an earlier unsworn statement. 

Finally, having reviewed the record, we conclude that substantial evidence 

supports the AJ’s finding that the agency met its burden of proving the charges against 

Mr. Lair by a preponderance of the evidence. 

 Turning to Mr. Lair’s argument that the AJ was biased against him and should 

have recused himself from the appeal, the record reflects that Mr. Lair filed a motion 

asking the AJ to recuse himself following the prehearing conference. According to Mr. 

Lair, at the conference, the AJ demonstrated bias against him. Specifically, Mr. Lair 

asserts that the AJ prejudged the merits of the suit and strongly emphasized the 

unlikelihood of Mr. Lair’s prevailing at the hearing, using words like “ridiculous” to 

describe Mr. Lair’s contentions and stating that Mr. Lair was “not telling the truth” and 

should not “expect a good result.” Mr. Lair also asserts that the AJ’s deciding certain 

evidentiary issues against him evinces improper bias. In denying Mr. Lair’s recusal 

motion, the AJ denied having prejudged the case or having exhibited overt bias. In his 

ruling, the AJ asserted that Mr. Lair “blatantly misrepresent[ed] and mischaracterize[d] 

2007-3147 5
2007-3147 6

statements allegedly made . . . during the prehearing teleconference,” and noted that he 

(the AJ) had acted within his rights in honestly apprising the parties of their chances of 

success on the merits. See generally Lair v. Dep’t of Homeland Sec., No. DC-0752-06-

0563-I-1 (M.S.P.B. Sep. 7, 2006). No record was made of what was said at the 

prehearing conference. 

 On the record before us, we have no basis to conclude that the AJ should have 

recused himself from Mr. Lair’s appeal. In the context of discussing possible settlement, 

it was not inappropriate for the AJ to indicate his view of the merits of Mr. Lair’s case. 

That said, this case provides us with an opportunity to note that the Board’s AJs should 

at all times conduct proceedings in a manner that does not in any way give rise to an 

appearance of hostility to an appellant’s case. 

 For the foregoing reasons, the final decision of the Board is affirmed. 

 Each party shall bear its own costs.