NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

04-3357 DANIEL R. RICHARDS, Petitioner,

v. FEDERAL DEPOSIT INSURANCE CORPORATION, Respondent.

__________________________ DECIDED: March 9, 2005

__________________________

Before RADER, SCHALL, and BRYSON, Circuit Judges

. PER CURIAM.

DECISION Daniel R. Richards petitions for review of the final de cision of the Merit Systems Protection Board (“Board”) that sustained the action of t he Federal Deposit Insurance Corporation (“agency”) removing him from his position as Counsel, CG-09-0905-15. Richards v. Fed. Deposit Ins. Corp. , No. DC-0752-03-0084-I-1 (M.S. P.B. Apr. 30, 2004) (“ Final Decision ”). We affirm

.DISCUSSI ON I. The agenc y removed Mr. Richards from his position based upon three charges: (1) unprofessional and/or inappr opriate behavior; (2) submission of a false time and attendance report; and (3) failur e to follow a direct order. Mr. Richards appealed his removal to the Board. Foll owing a hearing, t he adminis trative judge (“AJ”) to whom the appeal was assigned issued an initial dec ision sustaining the removal. Richards v. Fed. Depos it Ins. Corp. , No. DC-0752-03-0084-I-1 (M.S .P.B. Feb. 11, 2003) (“ Initial Decis i on ”). The Initial Decis i on became the final decision of the Board on April 30, 2004, after the Board denied Mr. Richards’ petiti on for review for fa ilure to meet the criteria for review s e t fort h at 5 C.F.R. § 1201.115(d). See F i na l Decis i on . This appea l 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 dec ision unless we find it be arbitrary, capricious, an abuse of discret ion, or otherwise not in a ccordanc e with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evid ence. 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health & Human Servs. , 153 F.3d 1357, 1361 (Fed. Cir. 1998). Mr. Richards rais es several issues on appeal. We address them in turn. Mr. Richards argues first that the decis ion of the Board is not supported by substantial evidence. Substantial evidenc e is “such relevant evidenc e as might be accepted by a reasonable mind as adequat e to suppor t the conclusion reac hed.” Hay e s

04-3357 2v. Dep’t of the Navy , 727 F.2d 1535, 1537 (Fed. Cir. 1984). The evidence before the Board inc l uded voic email and email messages and various personnel r e cords. In addition, the Board had before it the testi m ony of David Wall and Henry Griffin, Mr. Richards ’ first and second level superv i sors , respectively. The AJ cr edited the testimony of Mr. Wal l and Mr. Griffin over that of Mr. Richards. An AJ’s credibility determinations are vir t ually unreviewable, se e Frey v. Dep’t of Labor , 359 F.3d 1355, 1361 (Fed. Cir. 2004), and we see no reason to disturb the credibility determinations made by the AJ in this case. In view of the physic a l evidenc e and the testimony of Messrs. Wall an d Griffin, we reject Mr. Ric hards’ contention that the decision of the Board is not supported by substantial evidenc e

. Mr. Richards’ main argument on appeal is that the AJ was bias ed against him and that he was depriv ed of due process bec aus e of the way in which the AJ c onducted the hearing proceedings. Mr. Richards bas es hi s c l aim that the AJ was biased agains t him on rulings and st atements made by the AJ during the course of the proceedings. Such matters do not normally provide grounds for a claim of bias, see Liteky v. United States , 510 U.S. 540, 554-55 (1 994), and the record in this ca se confirms that the AJ’s remarks and rulings, taken in context, do not reflect and impermissible pers onal animu s against Mr. Ric hards. With respect to his c l aim that the AJ denie d him due process by conducting the hearing in a single day, there is no showing that the AJ’s decision to hear evidence between 9:50 am and 7:16 pm on a single day deprived Mr. Richards of his right to a fair proceeding. He was allowe d to testify for more than three hours, at the conclus i on of which he stat ed that he had no additional evi denc e to present regarding the charges against him. Al though he wis hed to testify about m a tters occurring more

04-3357 3than a decade prior to the charged misconduct, the AJ legitimately excluded that evidenc e as irrelevant. The AJ also legi timately barred Mr. Richards from introducing evidenc e s upporting his claim that his removal constituted an unlawful reduction in force and was t he product of a prohibited personnel practice by his supervis o rs. Mr. Richards ’ c ounsel had not rais ed those defenses at the pr ehearing conference and the AJ therefore properly hel d that M r . Richards could not raise them for the first time at the hearing. Finally, Mr. Richards c o mplains t hat he was unable to present two witnesses that he wished to call to his defense. Those witnesses were not pres ent at the hearing, and the AJ reasonably ruled that because M r

. Richards had not arranged for them to be present, despite ample notice of the date of the hearing, those wit nesses would not be heard. Finally, Mr. Richards c o mplains that he was denied due proce ss on account of an inaccurate hearing transcript, and that the Board erred in not considering certain evidenc e he presented in support of his pe tition for review. Ne ither cont ention has merit. Except for making a general allegat ion, Mr. Richards has failed to identify inaccuracies in the hearing transcript. As far as the second point is concerned, the Board did not err in failing to consider t he proffered evidence; it was neither new nor material. See 5 C.F.R. § 1201.115(d)(1). For the foregoing reasons, the final dec ision of the Board s u staining Mr. Richards ’ removal is affirmed.

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