Kerr v. Department of the Army ( 2007 )

Error: Bad annotation destination
Note: This disposition is nonprecedential.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 Board
NOTE: This disposition is nonprecedential.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.
__________________________
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.
DISCUSSION
I.
The Army removed Mr. Kerr from his position effective April 21, 2005, and Mr.
Kerr timely appealed his removal to the Board. Thereafter, following an evidentiary
hearing, the administrative judge (“AJ”) to whom the appeal was assigned issued an
initial decision in which she affirmed the agency’s action. Kerr v. Dep’t of the Army, No.
CH0752050648-I-1 (M.S.P.B. Dec. 16, 2005) (“Initial Decision”). In so doing, the AJ
sustained six of the agency’s seven charges against Mr. Kerr. The sustained charges
were (1) willful misuse of a government vehicle, Initial Decision at 13-15; (2) use of a
government credit card to charge for the purchase of fuel used for unauthorized 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 discourteous toward fellow employees, id.
at 25-31; and (6) being discourteous toward his supervisor, id. at 31-36. At the same
time, the AJ rejected Mr. Kerr’s affirmative defenses that he had been denied due
process and that the agency’s removal action was in reprisal for engaging in Equal
Employment Opportunity activity and for filing grievances. Id. at 37-38. Finally, the AJ
determined that Mr. Kerr’s removal promoted the efficiency of the service, id. at 39-40,
and that the penalty of removal, when considered in light of the pertinent Douglas
factors, see Douglas v. Veterans Admin., 5 M.S.P.R. 280 (1981), was reasonable, Initial
Decision at 40-44.
The Initial Decision became the final decision of the Board when the Board
denied Mr. Kerr’s petition for review for failure to meet the criteria for review set forth at
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5 C.F.R. § 1201.115(d). Final Decision. This appeal followed. 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.
Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; obtained
without procedures required law, rule, or regulation having been followed; or
unsupported by substantial evidence. 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 Board in this
case is none of these.
Mr. Kerr’s main argument on appeal is that the Board erred in sustaining the six
charges noted above. Thus, he complains that the Board took testimony “out of
context,” failed to consider his testimony or the testimony of his witnesses, and
generally failed to “take into account information in the record.” In essence, Mr. Kerr is
arguing that the decision of the Board is not supported by substantial evidence. The
contention is without merit. In the Initial Decision, which is exhaustive, the AJ
thoroughly marshaled the evidence and carefully explained why that evidence
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 some of the Douglas factors. However, the AJ was not required to
consider all of the Douglas factors. She only had to take into account the Douglas
2006-3315 3
factors 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 the facts relevant to ten of
the twelve Douglas factors; went into detail discussing Mr. Kerr’s offenses; and
considered the standard penalties for the offenses, the notice Mr. Kerr received, the
possibility of rehabilitation, and any mitigating circumstances. Initial Decision at 41-44.
We see no error in the decision of the Board to sustain the penalty of removal.*
For the forgoing reasons, the final decision of the Board is affirmed.
*
We have considered the other arguments raised by Mr. Kerr and have
found them to be without merit.
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