Note: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-3315

DONN A. KERR, Petitioner,

v. DEPARTMENT OF THE ARMY, Respondent.

Donn A. Kerr , of Marietta, Ohio, pro se. Phyllis Jo Baunach , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With her on the brief were Peter D. Keisler , Assistant Attorney General; David M. Cohen , Director; and William F. Ryan , Assistant Director.
Appealed from: United States Merit Systems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-3315 DONN A. KERR, Petitioner,

v.

DEPARTMENT OF THE ARMY, Respondent.

__________________________ DECIDED: January 9, 2007

__________________________ Before MICHEL, Chief Judge , SCHALL and PROST, Circuit Judges

. PER CURIAM.

DECISION Donn A. Kerr petitions for review of the final decision of the Merit Systems Protection Board (“Board”) that sustained the action of the Department of the Army (“Army” or “agency”) removing him from his position as a motor vehicle operator with the Corps of Engineers. Kerr v. Dep’t of the Army , No. CH0752050648-I-1 (M.S.P.B. May 17, 2006) (“ Final Decision ”). We affirm

.DISCUSSI ON
I. The Army removed Mr. Kerr from his pos ition effective Apr il 21, 2005, and Mr. Kerr timely appealed his removal to the Boar d. Thereafter, following an evidentiary hearing, the administrative judge (“AJ”) to whom the appeal was assigned issued an initia l dec is ion in whic h she affirmed the agency’s action. Kerr v. Dep’t of the Army , No. CH0752050648-I-1 (M.S.P.B. D e c. 16, 2005) (“ Initial Decisio n ”). In so doing, the AJ sustained six of the agency’s s e ven charges against Mr. Kerr . The sustained charges were (1) willful misuse of a gov ernment vehicle, Initial Decis i on at 13-15; (2) use of a government credit card to charge for the purc hase of fuel used for unauthoriz ed travel in a government vehicle vehicle, id

. at 15-16; (3) submission of a travel voucher claiming lodging expenses which were not incurred, id. at 16-20; (4) making a threatening remark to a fellow employee, id. at 22-25; (5) being disc ourteous toward fello w employees, id

. at 25-31; and (6) being discour teous toward his superv i sor, id. at 31-36. At the same time, the AJ rejected Mr. Kerr’s affirma tive defens es that he had been denied due process and that the agency’s removal action was in reprisal for engaging in Equa l Employment Opportunity activity and for filing grievances. Id. at 37-38. Finally, the AJ determined that Mr. K e rr’s removal prom oted the efficiency of the service, id. at 39-40, and that the penalty of removal, when c onsidered in light of the pertinent Douglas factors, see Douglas v. Veterans Admin. , 5 M.S.P.R. 280 (1981), was reasonable, Initial Decis i on at 40-44. The Initia l Decis i on became the final decision of the Board wh en the Bo ard denied Mr. Kerr’s petition for review for failure to meet the crit eria for review set forth at

2006-3315 25 C.F.R. § 1201.115( d). Final Decis i on . This ap pea l follo wed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II. Our scope of review in an appeal from a decision of the Board is limited. Specifica lly , we must affirm the Board’s d e ci sion unless we find it to be arbitrary, capricious, an abuse of discret ion, or otherwise not in a ccordanc e with law; obtained without procedures required la w, 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). The decision of the B oard in this case is none of these. Mr. Kerr’s main argument on appeal is th at the Board erred in s u staining the si x charges noted abov e. Thus, he complains t hat th e Board took testimony “out of context,” failed to consider his testimony or the test imony of his witnesses, and generally failed to “take into account information in the record.” In essence, Mr. Kerr is arguing that the decision of t he Board is not supported by substantial evidence. The contention is without merit. In the Initial Decis i o n , which is exhaustive, the AJ thoroughly marshaled the evidence and care fully explained why that evidenc e supported the Army’s case against Mr. Kerr. In so doing, the AJ made credibility determinations, which are virtually unreviewable by this court. Frey v. Dep’t of Labor , 359 F.3d 1355, 1361 (Fed. Cir. 2004).
Also without merit is Mr. Kerr’s argument that, in reviewing the penalty, the AJ only mentioned som e of the Douglas factors. However, t he AJ was not required to consider all of the Douglas factors. She only had to take into account the Douglas

2006-3315 3factors that were pertinent. See Farrell v. Dep’t of the Interior , 314 F.3d 584, 594 (Fed. Cir. 2002). That is what the AJ did. She briefly discussed t he facts relevant to ten of
the twelve Douglas factors; w ent into detail di scussing Mr. Kerr’s offenses; and
considered the standar d penalties for the offenses, t he notic e Mr. Kerr received, the possib ility of rehabilit at ion, and any mitigat ing c i rcumstances. Initial Dec i s i on at 41-44. We see no error in the decision of the B oard to sustain the penalty of removal. * For the forgoing reas ons, the final decis ion of the Board is affirmed.

* We have considered the other argum ents raised by Mr. Kerr and have found them to be without merit.

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