NOTE: This disposition is nonprecedential.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 Li tigation 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 Appealed from: United States Merit Systems Protection BoardNOTE: This disposition is nonprecedential.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.

DECI DED: 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 com ponent of the Departm ent of Homeland Security. In this appeal, he petitions for revi ew of the final decision of the Merit Systems

* Honorable James B. Moran, Senior Dis trict Judge, United States District Court for the Northern District of Illinois, sitting by designation.Protection Board (“Board”) that sustained the action of t he 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 positi on based upon (i) the charge that he used his position of authority fo r other than official purposes and (ii) the charge of misrepresentation. The first charge contain ed the following specifications: (1) that Mr. Lair contacted officers of U.S. Customs an d Border Protection and interjected himself into their investigation of t he immigration status of Nelly Rivero, a Venezuelan national; (2) that, without an official basis for doing so, he wrote U.S. Citiz enship and Immigration Services (“CIS”) requesting that Ms. Rivero be given a six-month ext ension 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. T he charge of misrepresent ation 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. Followin g a hearing, the administrative judge (“AJ”) to whom the appeal was assigned issued an initial decision in which he found that the agency had prov ed the charges against Mr. Lair by a preponderance of the evidence, that the penalt y of removal was reas onable, 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 2of the Board when the Board denied Mr. Lair’s pet ition for review for failure to meet the criteria for review set fort h at 5 C.F.R. § 1201.115(d). Final Decision at 2. This appeal followed. We have jurisdiction pu rsuant 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 deci sion unless we find it to be arbitrary, capricious, an abuse of discret ion, or otherwise not in a ccordance with law; obtained without procedures required la w, rule, or regulation having been followed; or unsupported by substantia l 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 pro ffered by Mr. Lair, to testify. According to Mr. Lair, Mr. Merchant would have testif ied as an expert witness conc erning the procedures of CIS (presumably in connection with specific ation 2 of the abuse of position/authority charge). Mr. Lair states that Mr. Merchant also would have te stified 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 ar gues that the AJ err ed in not allowing his counsel to cross-examine the agen cy’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 statement s 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 3substantial evidence. Finally, Mr. Lair argu es 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 c oncerning 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 r eason 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 fr om the fact that conversations between Mr. Merchant and the Lairs were not relevant, both Mr. and Mrs. Lair testifi ed 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. Th e record reveals no denial of necessary latitude in connection with the ques tioning of the deciding official by Mr. Lair’s counsel. An AJ possesses significant discretion to determine w hat 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 re gard to the admission of Ms. Rivero’s statements. The AJ admitt ed 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 4notwithstanding the fact that the sworn de claration contradicted an earlier unsworn statement she had given in wh ich she denied ever having been employed by Mr. Lair. Initial Decision at 7–8. Mr. Lair faults the AJ’s dec ision 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 statem ent 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 st atement supported by two witnesses is more credible than an earlier unsworn statement. Finally, having reviewed the record, we conclude that subs tantial 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 t he AJ was biased against him and should have recused himself from the appeal, the record reflects t hat Mr. Lair filed a motion asking the AJ to recuse himself following th e prehearing conference. According to Mr. Lair, at the conference, the AJ demonstrated bias against hi m. Specifically, Mr. Lair asserts that the AJ prej udged the merits of the suit and strongly emphasized the unlikelihood of Mr. Lair’s pr evailing at the hearing, using words like “ridiculous” to describe Mr. Lair’s contentions and stating t hat Mr. Lair was “not telling the truth” and should not “expect a good result.” Mr. Lair al so asserts that the AJ’s deciding certain evidentiary issues against him evinces im proper bias. In denying Mr. Lair’s recusal motion, the AJ denied having pr ejudged the case or having exhi bited overt bias. In his ruling, the AJ asserted that Mr. Lair “bla tantly misrepresent[ed] and mischaracterize[d]

2007-3147 52007-3147 6 statements allegedly made . . . during the prehearing telec onference,” 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 reco rd 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 discussi ng 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 op portunity 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.