He Said, They Said

In this recent appeals court decision, the fired employee made witness credibility determinations by an administrative judge the crux of his argument to the court, but he did not get very far with that line of attack. (Clipse v. Department of Homeland Security CAFC No. 2016-1209 (nonprecedential), 4/7/16)

Mr. Clipse served for seven years as a Law Enforcement Specialist at the FLETC when he was faced with removal. His role was Lead Instructor in the Driver and Marine Division. The agency charged him with failure to follow written directives (six specifications), and lack of candor (three specifications).

Clipse’s troubles involved many allegations about his fraternization with female students and a female intern over a six-year period, something prohibited by agency policy. The agency sustained both charges and removed Clipse in late 2013.

Clipse appealed to the Merit Systems Protection Board, essentially denying the allegations and arguing removal was too harsh. The Board ruled against him, so Clipse took his case to the appeals court. There he argued largely that the Board’s administrative judge had erred in his witness credibility determinations. He pointed out in every instance of “he said, they said,” the judge concluded that the testimony of the witnesses against him was more credible than Clipse’s explanations.. This is an uphill battle for an appeal since the court has a “virtually unreviewable” standard for credibility determinations made by administrative judges. To succeed, Clipse would have had to persuade the appeals court that the AJ’s decisions were “inherently improbably or discredited by undisputed fact.” (p. 3) Unfortunately for Clipse, he could not begin to meet this tall order, or, as the court put it, “Mr. Clipse has not made that showing.” (p. 3)

Where on the one hand the AJ concluded witnesses had no motive to lie, on the other hand, she found “Mr. Clipse’s story to be ‘so inherently improbable it renders his testimony not credible.’” (p. 4) She said she had the impression Clipse “would change his story as necessary to further his position.” (p. 4)

The litany goes on in the court’s decision. Where Clipse argues the agency only took messages out of context and did not present the full record, the court notes that the AJ found messages not even being contested by Clipse as “playful flirtatious banter and were certainly not training related.” (p. 5)

In the final analysis, the court sided with the AJ’s findings and Mr. Clipse failed to win his job back.

Clipse v. DHS 2016-1209

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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