The Second Time's the Charm

The Navy’s decision to fire an employee for misuse of a government travel credit card has been sustained by the appeals court the second time around. (Davis v. Department of the Navy, CAFC No. 2011-3229 (nonprecedential), 2/13/12)

Davis, during her probationary period as a mathematical statistician at the Naval Safety Center in Norfolk, Virginia, was issued the credit card for official government travel. She used it to charge movie tickets, airline tickets for family, and plastic surgery. (Opinion p. 4)

The Navy removed Davis in 2008 a few days shy of the expiration of her probationary period. The first time around, the Federal Circuit Court of Appeals reversed that removal, holding that Davis’ previous cumulative federal service should have been applied to her probationary period because it was “in the same line of work” as the position she was terminated from. (p. 2)

The Navy duly reinstated Davis with back pay and put her on administrative leave while it processed her removal for misuse of a credit card. This time, the Navy used adverse action procedures. Davis appealed to the Merit Systems Protection Board. Among other things she accused the Navy of discrimination (race, sex and age) and argued that she had never been properly trained on the use of her government credit card. (p. 3)

The Administrative Judge did not buy these arguments. He found that Davis did not prove her discrimination claims. Further, he found that her claim she did not understand she could only use the credit card for government travel had no credibility and that Davis “knew, or should have known, that her government credit card was not for personal use.” (p. 3)

Davis has now tried the same arguments on the appeals court, but this time she has lost. The court upheld the AJ’s decision, finding no error in his handling of her case. As to Davis’ newly-presented argument to the court that the MSPB had violated her constitutional protection against double jeopardy, the court patiently explains that this protection only applies in a criminal context and is “inapplicable in administrative proceedings.” (p. 5) Because Navy rescinded the original probationary removal action, fully restored Davis retroactively, and then proceeded anew, “Davis did not suffer two adverse personnel actions as a result of her improper use of a government credit card.” (p. 6

Bottom line: finding no abuse of discretion on the part of Navy or the MSPB, Davis stays fired this time around.

Davis v. Navy (2011-3229)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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