Levy v. Department of Homeland Security, 684 F. App'x 971

Justin Levy applied to be a Customs and Border Protection Officer (CBPO) selecting New Jersey; CBP invited applicants to accept southwest border locations instead.
Levy alleges a CBP employee (Jessica) orally promised him “first dibs” to transfer to New Jersey later; he did not know her last name or supervisory status and there was no written agreement.
Levy received and signed multiple documents warning that duty locations would not be changed and transfers would generally be denied for the first two years.
Levy accepted a position in Nogales, Arizona, trained, learned New Jersey posts were filled, and complained about CBP hiring practices while believing he had a verbal promise.
After failing to report back to Arizona in April 2012, Levy was terminated for absence without leave and unprofessional emails; he appealed to the Merit Systems Protection Board (MSPB) alleging whistleblower retaliation.
The MSPB found Levy did not make a protected disclosure under the Whistleblower Protection Act; the Federal Circuit affirmed, holding the Board’s decision was supported by substantial evidence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Levy made a protected disclosure of illegal hiring practices	Levy contends his complaints about CBP hiring (based on Jessica’s assurances) were protected whistleblowing	Agency argues Levy did not make a protected disclosure and his belief derived from an unverified oral promise contradicted written notices	Held: Levy failed to prove he made a protected disclosure; Board’s finding supported by substantial evidence
Whether the Board improperly ignored evidence or witnesses	Levy claims the Board dismissed or failed to consider evidence and witness testimony	Agency asserts the record was considered; credibility determinations are for the Board	Held: Court presumes the Board reviewed the record; no specific contrary evidence; claim rejected
Whether the Board improperly credited agency witness over Levy	Levy argues Board improperly credited Jessica’s testimony	Agency argues credibility assessments are within Board’s discretion and were justified by consistency with documents and duties	Held: Credibility determinations are virtually unreviewable; Board reasonably credited Jessica; affirmed
Whether the Board’s decision was supported by law and substantial evidence	Levy contends legal errors or insufficient evidentiary support	Agency maintains correct legal standard applied and adequate evidence supports denial	Held: Court finds no error; Board applied correct law and had substantial evidence; decision affirmed

Cleaton v. Dep’t of Justice, 839 F.3d 1126 (Fed. Cir.) (standard for reversing MSPB decisions)
Jones v. Dep’t of Health & Human Servs., 834 F.3d 1361 (Fed. Cir.) (definition of substantial evidence)
Gonzales v. West, 218 F.3d 1378 (Fed. Cir.) (presumption that tribunal reviewed the record)
Kahn v. Dep’t of Justice, 618 F.3d 1306 (Fed. Cir.) (credibility evaluations by the Board are virtually unreviewable)
King v. Dep’t of Health & Human Servs., 133 F.3d 1450 (Fed. Cir.) (credibility determinations are largely unreviewable)