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                       Note: This disposition is nonprecedential.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                      NOTE: This disposition is nonprecedential.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




2006-3315                                     2
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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