Full Opinion

Case: 26-1800 Document: 17 Page: 1 Filed: 11/05/2026 NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ VALERIE SIMPSON, Petitioner v. DEPARTMENT OF VETERANS AFFAIRS, Respondent ______________________ 2026-1800 ______________________ Petition for review of the Merit Systems Protection Board in No. PH-0714-18-0410-B-1. ______________________ Decided: November 5, 2026 ______________________ VALERIE SIMPSON, Wilmington, DE, pro se. MATTHEW JUDE CARHART, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, for respondent. Also represented by ALBERT S. IAROSSI, PATRICIA M. MCCARTHY, BRETT SHUMATE. ______________________ Before TARANTO, LINN, and CUNNINGHAM, Circuit Judges. Case: 26-1800 Document: 17 Page: 2 Filed: 11/05/2026 2 SIMPSON v. DVA PER CURIAM. Valerie Simpson petitions for review of a decision of the Merit Systems Protection Board (“Board”), Simpson v. De- partment of Veterans Affairs, No. PH-0714-18-0410-B-1, 2024 WL 3964573 (M.S.P.B. Aug. 21, 2024) (“2024 Initial Decision”), which became final after the Board denied her petition for review, Simpson v. Department of Veterans Af- fairs, No. PH-0714-18-0410-B-1, 2026 WL 673069 (M.S.P.B. Mar. 9, 2026) (“Final Order”). The 2024 Initial Decision affirmed a decision by the Department of Veter- ans Affairs (“VA”) removing Simpson from her position as an Advanced Medical Support Assistant for conduct unbe- coming a federal employee. Because the charge against Ms. Simpson was supported by substantial evidence and we discern no reversible error in the Board’s decision, we affirm. I Ms. Simpson was employed by the VA as an Advanced Medical Support Assistant at the Wilmington VA Medical Center. On May 4, 2018, Ms. Simpson visited a jewelry vendor, Cheryl Price, at the medical center and left with two jewelry sets for which she had not paid. Ms. Simpson maintained that Ms. Price gave her permission to take the jewelry and pay for it later; Ms. Price denied doing so. The VA proposed removing Ms. Simpson for conduct unbecoming a federal employee. The three specifications for removal alleged that she: (A) took the two jewelry sets without permission; (B) gave inconsistent and untruthful accounts during the ensuing investigation; and (C) made statements to VA police about making a “deal” and speak- ing with Ms. Price to “work things out.” S.A. 91–92 (em- phases omitted). 1 Deciding official Vincent Kane sustained 1 S.A. refers to the Supplemental Appendix attached to the Respondent’s Informal Response Brief. ECF No. 7. Case: 26-1800 Document: 17 Page: 3 Filed: 11/05/2026 SIMPSON v. DVA 3 the charge and removed Ms. Simpson effective July 27, 2018. On appeal, the administrative judge (“AJ”) sustained the first two specifications, rejected the third, and affirmed the removal. S.A. 55–90, Simpson v. Dep’t of Veterans Affs., No. PH-0714-18-0410-B-1, (M.S.P.B. Dec. 17, 2018) (“2018 Initial Decision”). The AJ also rejected Ms. Simpson’s whistleblower-retaliation defense and concluded that the Douglas factors were immaterial to a removal under 38 U.S.C. § 714. The Board vacated and remanded for the AJ to deter- mine whether Mr. Kane’s use of the substantial-evidence standard rather than the preponderance-of-the-evidence standard was harmful, whether Ms. Simpson’s protected disclosure contributed to her removal, and whether the VA properly considered the Douglas factors. Simpson v. Dep’t of Veterans Affs., No. PH-0714-18-0410-I-1, 2024 WL 1110341, at *2–5 (M.S.P.B. Mar. 13, 2024) (“Remand Or- der”). On remand, the AJ again affirmed the removal. In doing so, the AJ gave no weight to a letter Ms. Simpson submitted on remand that was purportedly signed by Ms. Price and characterized the jewelry incident as a mis- communication. The Board denied Ms. Simpson’s petition for review and affirmed. Ms. Simpson then timely petitioned this court for review. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). II We must affirm the Board’s decision unless it is “(1) ar- bitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures re- quired 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 Case: 26-1800 Document: 17 Page: 4 Filed: 11/05/2026 4 SIMPSON v. DVA a conclusion.” Haebe v. Dep’t of Just., 288 F.3d 1288, 1298 (Fed. Cir. 2002) (quoting Brewer v. United States Postal Serv., 647 F.2d 1093, 1096 (Ct. Cl. 1981)). Ms. Simpson raises four principal arguments on ap- peal: (1) substantial evidence does not support the finding that she engaged in the charged misconduct; (2) the agency’s use of the substantial-evidence standard rather than the preponderance-of-the-evidence standard consti- tuted harmful error; (3) the agency failed to establish that it would have removed her absent her protected disclo- sures; and (4) the agency failed to properly consider the Douglas factors in selecting the penalty of removal. We ad- dress each argument in turn. First, substantial evidence supports the Board’s mis- conduct finding. The AJ credited Ms. Price’s account over Ms. Simpson’s and found Ms. Simpson’s accounts materi- ally inconsistent. The AJ found the discrepancies in Ms. Price’s testimony minor compared with the inconsistencies in Ms. Simpson’s accounts of whether and when Ms. Price gave her permission to take the jewelry. Such credibility determinations are “‘virtually unreviewable’ on appeal.” Hornseth v. Dep’t of Navy, 916 F.3d 1369, 1376 (Fed. Cir. 2019) (quoting King v. Dep't of Health & Human Servs., 133 F.3d 1450, 1453 (Fed. Cir. 1998)). Ms. Simpson’s argument relies on a July 22, 2018 let- ter purportedly signed by Ms. Price characterizing the in- cident as a miscommunication. The AJ considered the letter on remand but gave it no weight, noting that Ms. Price testified consistently with her original account at the 2018 hearing and that Ms. Simpson failed to explain why a letter she claimed to possess before the original ap- peal was never introduced or used to cross-examine Ms. Price. The Board found no abuse of discretion and fur- ther concluded that “the weight of the evidence establishes that [Ms. Simpson] engaged in the misconduct as alleged and the letter does not negate this finding.” S.A. 11. We Case: 26-1800 Document: 17 Page: 5 Filed: 11/05/2026 SIMPSON v. DVA 5 discern no reversible error in the Board’s treatment of the letter or its decision sustaining the charge. Second, Ms. Simpson has not shown that Mr. Kane’s use of the substantial-evidence standard rather than the preponderance-of-the-evidence standard was harmful. Ms. Simpson argues that use of the wrong standard by the de- ciding official was itself reversible error. But whether this agency error warrants reversal turns on whether it was harmful. See Oliva v. Dep’t of Veterans Affs., 176 F.4th 650, 661–62 (Fed. Cir. 2026) (citing 5 C.F.R. § 1201.4(r)). To es- tablish harmful error, Ms. Simpson must show that the agency was likely to have reached a different conclusion absent the error. Id. While the Board recognized that Mr. Kane had applied the wrong standard, it remanded for the AJ to determine whether that error was harmful. On remand, Mr. Kane testified that he would have sustained the charge had he applied the preponderance-of-the-evidence standard in 2018, and the AJ credited that testimony. The AJ further found that the evidence supporting the charge, including Ms. Price’s testimony, the police investigatory report, and Ms. Simpson’s inconsistent accounts, satisfied the prepon- derance standard. Substantial evidence therefore supports the Board’s determination that the deciding official’s error did not affect the outcome. Third, substantial evidence supports the rejection of Ms. Simpson’s whistleblower-retaliation defense. The AJ found that Ms. Simpson’s scheduling complaints were pro- tected disclosures and that proposing official Christine O’Donnell knew of those disclosures when she proposed Ms. Simpson’s removal, but that the VA proved by clear and convincing evidence that it would have removed Ms. Simpson absent her protected disclosure. Ms. Simpson claims that the Board improperly assessed the Carr fac- tors. See Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999). However, the AJ’s analysis of the Carr Case: 26-1800 Document: 17 Page: 6 Filed: 11/05/2026 6 SIMPSON v. DVA factors was supported by substantial evidence. For the first factor, the AJ relied on the strength of the evidence supporting the charge, including Ms. Price’s testimony, the police investigatory report, and Ms. Simpson’s inconsistent accounts. For the second factor, the AJ found little retali- atory motive because Mr. Kane did not know of Ms. Simp- son’s protected disclosure and Ms. O’Donnell testified that she viewed Ms. Simpson’s concerns regarding the widely known scheduling backlog as constructive. For the third factor, Mr. Kane testified that he was aware of 35 other employees who engaged in similar conduct and were also removed. Considering the record as a whole, substantial evidence supports the Board’s determination that the agency proved by clear and convincing evidence that it would have removed Ms. Simpson even absent her pro- tected disclosure. Finally, the Board did not err in concluding that the VA properly considered the Douglas factors. Ms. Simpson ar- gues that the agency failed to conduct the required analysis under Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305–06 (1981). Ms. Simpson points to the 2018 Initial De- cision, in which the AJ concluded that the Douglas factors were immaterial to a removal under § 714. The Board, however, vacated that decision and remanded in light of intervening precedent holding that the VA and the Board must consider the Douglas factors when selecting and re- viewing penalties imposed under § 714. Remand Order, 2024 WL 1110341, at *5. On remand, the AJ credited Mr. Kane’s testimony that he had considered the relevant Douglas factors when de- ciding to remove Ms. Simpson. Mr. Kane considered the seriousness of the misconduct, his loss of confidence in Ms. Simpson’s integrity and reliability, lesser forms of dis- cipline, consistency with the agency’s table of penalties and discipline imposed in similar cases, Ms. Simpson’s length of service, her positive performance history, and her lack of prior discipline. The AJ then concluded that removal fell Case: 26-1800 Document: 17 Page: 7 Filed: 11/05/2026 SIMPSON v. DVA 7 within the bounds of reasonableness and promoted the ef- ficiency of the service. We discern no reversible error in the Board’s analysis of the Douglas factors. CONCLUSION We have considered Ms. Simpson’s remaining argu- ments and find them unpersuasive. For the foregoing rea- sons, we affirm the decision of the Board. AFFIRMED COSTS No costs.