       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                 TRACEY L. DAVIS,
                    Petitioner,
                           v.
           DEPARTMENT OF THE NAVY,
                  Respondent.
              __________________________

                      2011-3229
              __________________________

   Petition for review of the Merit Systems Protection
Board in case no. DC0752100830-I-1.
               __________________________

              Decided: February 13, 2012
              __________________________

   TRACEY L. DAVIS, of Norfolk, Virginia, pro se.

    MICHELLE R. MILBERG, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
her on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and DEBORAH A.
BYNUM, Assistant Director.
               __________________________
DAVIS   v. NAVY                                         2


    Before PROST, MAYER, and REYNA, Circuit Judges.
PER CURIAM.
     Tracey L. Davis appeals from a final decision of the
Merit Systems Protection Board (“board”) affirming the
decision by the United States Navy to remove her for
misuse of a government credit card. See Davis v. Dep’t of
the Navy, 116 M.S.P.R. 561 (M.S.P.B. July 20, 2011). We
affirm.
                            I.
    In 2006, Davis received a temporary appointment in
the competitive service as a statistical assistant at the
Naval Safety Center in Norfolk, Virginia. On April 1,
2007, she obtained a career appointment with the Navy as
a mathematical statistician. This career appointment
was subject to a one-year probationary period. On March
26, 2008, the agency terminated Davis for misconduct,
alleging that she had improperly used, or attempted to
use, her government credit card for personal expenses
unrelated to official government travel.
    Davis filed an appeal challenging her dismissal, but
the board dismissed her appeal for lack of jurisdiction
after concluding that she was serving as a probationary
employee at the time of her termination. On appeal, this
court reversed. See Davis v. Merit Sys. Prot. Bd., 340 F.
App’x 660 (Fed. Cir. 2009). We concluded that Davis’
cumulative prior federal service should be applied to her
probationary period because her previous service was “in
the same line of work” as her most recent position. Id. at
664. Since her previous federal service could be credited
toward her probationary period, Davis was not serving as
a probationary employee at the time of her termination.
Id. at 663-65. Accordingly, we reversed the board’s deci-
3                                             DAVIS   v. NAVY


sion dismissing her appeal for lack of jurisdiction and
remanded for a determination on the merits of her claim.
    On remand, an administrative judge (“AJ”) stated
that “[a]n agency’s failure to provide a tenured public
employee with an opportunity to respond, either in person
or in writing, to an appealable agency action that deprives
her of her property right in her employment constitutes
an abridgement of her constitutional right to minimum
due process of law.” Davis v. Dep’t of the Navy, 2010
MSPB LEXIS 2060, at *4-5 (M.S.P.B. Apr. 15, 2010).
Although the agency’s termination notice had provided
Davis with an explanation of the charges against her, she
was never afforded an opportunity to respond to those
charges. Because Davis “was not afforded her constitu-
tional right to minimum due process” when she was
terminated, the AJ ordered that she be restored to her
original position and given back pay. Id. at *5.
     The Navy subsequently restored Davis to her original
position, awarded her back pay, and placed her on admin-
istrative leave. In May 2010, the Navy issued a second
notice proposing Davis’ removal based upon misuse of a
government credit card. After granting Davis an oppor-
tunity to respond to the proposed removal, the Navy
issued a final decision notice removing her from her
position. Davis then appealed to the board, arguing that
the Navy had discriminated against her based upon her
race, sex, and age, and that she had received inadequate
training on the use of her government credit card. An AJ
rejected these arguments, however, concluding that Davis
failed to provide factual support for her allegations of
discrimination and that she knew, or should have known,
that her government credit card was not for personal use.
The AJ further concluded that removal was an appropri-
ate penalty given that Davis had used, or attempted to
DAVIS   v. NAVY                                            4


use, her government credit card for movie tickets, airline
tickets for family members, and plastic surgery services.
    The AJ’s decision became the final decision of the
board when the board denied Davis’ petition for review.
Davis thereafter appealed to this court. We have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(9).
                             II.
     Our review of a decision of the board is limited by
statute. We can only set aside a board decision if it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate
to support a conclusion.” McEntee v. Merit Sys. Prot. Bd.,
404 F.3d 1320, 1325 (Fed. Cir. 2005) (citations and inter-
nal quotation marks omitted).
    On appeal, Davis argues that she was inadequately
trained on the proper use of her government credit card.
She contends that she “never knew that the travel card
was to be used for government travel only,” and that the
Navy was “unable to present any documents to substanti-
ate that” she had been informed that she could not use
the card for personal use.
    The AJ, however, did not find Davis’ assertion that
she did not understand that her government credit card
was not for personal use to be credible. As an appellate
court, we cannot set aside this credibility determination
unless we find it to be “inherently improbable or discred-
ited by undisputed fact.” Bieber v. Dep’t of the Army, 287
F.3d 1358, 1364 (Fed. Cir. 2002) (citations and internal
quotation marks omitted). The record shows that Davis
5                                             DAVIS   v. NAVY


applied for a “standard” government credit card.        De-
partment of Defense regulations in effect at the time
Davis obtained her card specifically required that such
cards be issued with the words “For Official Government
Travel Only.” Furthermore, while the government was
unable to produce a copy of the actual card issued to
Davis, it did produce a copy of a card issued at approxi-
mately the same time as Davis’ card and that card con-
tained the words “For Official Government Travel Only.”
Under such circumstances, the AJ did not err in rejecting
as not credible Davis’ assertion that she failed to appreci-
ate that her card should not be used for personal pur-
poses.
    Davis contends that her constitutional rights were
violated because the board’s decision sustaining her
removal violates the prohibition against double jeopardy.
We do not find this argument persuasive. The constitu-
tional prohibition against double jeopardy applies in the
criminal context and is inapplicable in administrative
proceedings. See Hudson v. United States, 522 U.S. 93, 99
(1997) (explaining that the Double Jeopardy Clause of the
Fifth Amendment protects against imposition of multiple
criminal punishments for the same offense); United States
v. Hess, 317 U.S. 537, 549 (1943) (emphasizing that only
criminal punishments “subject the defendant to ‘jeopardy’
within the constitutional meaning”). Furthermore, Davis
was not disciplined twice for the same misconduct. After
this court reversed the board’s determination that Davis
was serving as a probationary employee at the time of her
original termination, the Navy rescinded that termina-
tion, awarded her back pay, and restored her to her
original position. The Navy thereafter issued a new
notice of proposed removal and gave Davis an opportunity
to respond to the charges against her before issuing its
final notice removing her from her position. Because
DAVIS   v. NAVY                                            6


Davis’ original termination was rescinded on procedural
grounds, Davis did not suffer two adverse personnel
actions as a result of her improper use of a government
credit card.
    The AJ likewise did not err in rejecting Davis’ claim
that she was terminated in retaliation for having chal-
lenged her original removal by filing appeals with the
board and with this court. The Navy made the decision to
terminate Davis for misuse of her government credit card
even before she filed any appeal. Davis, moreover, pre-
sented no credible evidence suggesting that the Navy’s
decision to institute a second removal action was moti-
vated by a desire to retaliate against her for challenging
her original termination.
     Davis further asserts that removal was an unduly
harsh penalty for her offense. In support, she argues
that she paid the balance on the government credit card
out of her personal funds and that her improper use of the
card did not compromise her ability to do her job. The
choice of a penalty for misconduct, however, “is committed
to the sound discretion of the employing agency and will
not be overturned unless the agency’s choice of penalty is
wholly unwarranted in light of all the relevant factors.”
Guise v. Dep’t of Justice, 330 F.3d 1376, 1382 (Fed. Cir.
2003). Here, Davis’ supervisor testified that he concluded
that removal was an appropriate penalty given the seri-
ousness of her offense and the fact that her job as a statis-
tician required her to perform her duties in a responsible
and accurate manner. He further testified that he found
Davis’ claim that she did not understand that her credit
card was to be used only for government travel “incredi-
ble,” and that her misconduct caused him to lose confi-
dence in her ability to properly perform her job
responsibilities. In light of this testimony, we cannot
conclude that the Navy’s decision to remove Davis was “so
7                                             DAVIS   v. NAVY


harsh and unconscionably disproportionate to the offense
that it amounts to an abuse of discretion.” Villela v. Dep’t
of the Air Force, 727 F.2d 1574, 1576 (Fed. Cir. 1984)
(citations and internal quotation marks omitted).
    We have considered Davis’ remaining arguments but
do not find them persuasive. Accordingly, we affirm the
board’s decision sustaining Davis’ removal for improper
use of a government-issued credit card.
