NOTE: This disposition is nonprecedential.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.
2 CLIPSE v. DHS

PER CURIAM. 

Joseph F. Clipse appeals the final decision of the Merit Systems Protection Board (“Board”), which denied Mr. 

Clipse’s petition for review and affirmed the administrative judge’s initial decision. In the initial decision, the 

administrative judge affirmed the Department of Homeland Security’s 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. Clipse’s 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 3

were violated. Clipse v. Dep’t of Homeland Sec., AT-0752-

14-0178-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. 

Dep’t 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 Board’s decision is limited by statute. We must affirm the Board’s 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. Clipse’s 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. Dep’t of the Army, 287 F.3d 1358, 1364 

(Fed. Cir. 2002). Indeed, as an appellate court, we cannot 

set aside the administrative judge’s 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-
4 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. Clipse’s 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 student’s testimony to be “straightforward about 

admittedly embarrassing facts.” Initial Decision, slip op.

at 20. Finally, the administrative judge found that the 

student’s 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. Clipse’s story to be “so inherently improbable it 

renders his testimony not credible.” Id. As to Mr. Clipse’s

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 testimony—including a hotel receipt that he relied on 

to show that he had been with his brother and not with 

the student on a given weekend—but found that, on 

balance, the student’s version of events was more likely to 

be true than Mr. Clipse’s version. Id. at 22–23. 

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 5

Clipse. Because the administrative judge’s 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 true—which 

the administrative judge found was unlikely—the 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 

35–36. 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 Board’s decision.

AFFIRMED

COSTS

Each party shall bear their own costs.