NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3316 REGINALD CHENEY, Petitioner,

v. DEPARTMENT OF JUSTICE, Respondent. Lawrence A. Berger , Mahon & Berger, of Glen Cove , New York, for petitioner. Allison Kidd-Miller , Trial Attorney, Commercial Liti gation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With her on the brief were Gregory G. Katsas , Assistant Attorney General, Jeanne E. Davidson , Director, and Todd M. Hughes , Deputy Director. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3316 REGINALD CHENEY, Petitioner,

v. DEPARTMENT OF JUSTICE, Respondent.

Petition for review of the Merit Systems Protection Board in CH0752070243-I-1.

__________ ________________ DECIDED: October 7, 2008

__________________________ Before MAYER, LINN and MOORE, Circuit Judges

. PER CURIAM. Reginald Cheney appeals a final decision of the Merit Systems Protection Board (Board) affirming his removal from the Drug Enforcement Administration (DEA). See Cheney v. Dep’t of Justice , No. CH-0752070243-I-1 (M.S.P.B. June 7, 2007). We affirm the final decision of the Board Prior to his removal, Mr. Cheney was empl oyed as the resident agent in charge of the Cleveland resident office of DEA. Mr. Cheney was removed from DEA following an investigation into allegations that he engaged in a course of c onduct that included: instructing his subordinates to issue su bpoenas outside of the scope of business; discussing an investigation into his conduct with DEA personnel after being instructednot to do so; and making false statements to D EA internal affairs in vestigators. Mr. Cheney appealed his removal to the Board. On June 7, 2007, the Board issued an initial decision, whic h became final on July 12, 2007, affirming Mr. Cheney’s removal based upon findings of: (1) misuse of office; (2) conduct unbecoming a DEA Supervisory Special Agent; and (3) making false, misleading, and/or inaccurate statements. The Board furt her found that Mr. Cheney’s misconduct was connected to the efficiency of the service and that his remo val did not exceed the tolerable limits of reasonableness. Mr. Cheney appeals the final decision, and we have jurisdiction under 28 U.S.C. § 1295(a). Our review is limited to setting aside findings or conclusions of the MSPB that we find to be “(1) arbitr ary, capricious, an abuse of di scretion, or ot herwise not in accordance with law; (2) obt ained without procedur es required by law, rule, or regulation having been followed; or (3) unsuppor ted by substantial evidence.” 5 U.S.C. § 7703(c). Mr. Cheney asserts that the Board’s decis ion was not supported by substantial evidence. We disagree. The Board’s conc lusions were supported by physical evidence as well as testimony from ot her DEA agents. To the extent that Mr. Cheney provided testimony on his own behalf, the Board found this testimony to be nei ther truthful nor credible, and “credibility determinations are virtually unreviewable.” Chambers v. Dep’t of the Interior , 515 F.3d 1362, 1370 (Fed. Cir. 2008) (int ernal quotation marks omitted). For the foregoing reasons, we affirm the final decision of the Board. COSTS No costs.

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