NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3314
GREGORY A. LYONS,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Gregory A. Lyons, of Torrance, California, pro se.
Anuj Vohra, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC for respondent. With him on the brief
were Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3314
GREGORY A. LYONS,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Petition for review of the Merit Systems Protection Board in SF0752070192-I-1.
______________________________
DECIDED: April 7, 2008
______________________________
Before NEWMAN, Circuit Judge, FRIEDMAN, Senior Circuit Judge. and SCHALL,
Circuit Judge.
PER CURIAM.
The appellant, Gregory A. Lyons (“Lyons”), challenges the Merit Systems
Protection Board (“Board”)’s affirmance of his removal by the Department of Veterans
Affairs (“Department”). We affirm.
I
The Department removed Lyons, who was a part-time dishwasher and kitchen
helper, for various acts of misconduct. The charges the Department sustained included
that Lyons (1) wrote to his fellow employee and union president threatening her with
arrest, (2) falsely wrote the employer of a lawyer who formerly worked at the
Department that the lawyer was under investigation for criminal misconduct and (3)
misused transit benefits that the Department had provided for its employees. In
selecting removal as the appropriate penalty for the misconduct, the Department
concluded that Lyons’ nearly five years of service, lack of prior discipline, and otherwise
satisfactory performance were outweighed by the serious nature of Lyons’ offenses, his
lack of remorse and his “poor potential for rehabilitation.”
Prior to the acts for which Lyons was removed, the Department had suspended
him for fifteen days for other misconduct, but it cancelled the suspension after he had
appealed it to the Board.
The Board upheld the removal. In his twenty-six page initial decision, which
became the Board’s final decision when the Board denied review, the Board’s
administrative judge discussed at length Lyons’ numerous contentions and rejected
most of them. The Board held that Lyons improperly had written to a fellow employee
and union president that unless she rescinded the prior order barring him from access
to the union office, “she would be arrested and face criminal prosecution,” and although
he “was not authorized to initiate criminal proceedings,” his letter “implied that he could.”
The Board also found that Lyons had stated falsely in an email to the employer of a
former Department lawyer that the lawyer was “under investigation for Criminal
Misconduct in” the Board case in which Lyons challenged his prior fifteen-day
suspension. Finally, the Board sustained the Department’s charge that Lyons had
misused the Department’s transit benefit program by using those benefits for
transportation on days he did not work.
2007-3314 2
The Board rejected Lyons’ claims that the Department removed him in retaliation
for (1) whistleblowing, (2) filing a complaint with the Equal Employment Opportunity
Commission and (3) appealing his fifteen-day suspension to the Board. It also rejected
his claim that harmful procedural error occurred in the removal proceedings. Finally, the
Board “conclude[d] that removal does not exceed the maximum reasonable penalty
based on the sustained allegations.”
II
Lyons asserts a broadside of alleged factual and legal errors by the Board in
upholding his removal. Our authority to review Board decisions is limited. See Kimm v.
Dep’t of the Treasury, 61 F.3d 888, 891 (Fed. Cir. 1995). We have considered all of
Lyons’ contentions, but find them unpersuasive. We need discuss only four of them,
and those only briefly.
Lyons contends that the Board violated 5 U.S.C. § 2302(9)(A), which prohibits an
agency from taking adverse personnel action because of an employee’s appeal of an
agency decision. That was the issue that Lyons litigated before the Board in his
contention that the Department’s adverse action against him constituted retaliation for,
among other things, his appealing his prior suspension to the Board. The Board
rejected that claim and substantial evidence supports that ruling.
Lyons also argues that the Board failed to consider the declaration of his
attorney, Mr. Smyth. The Board’s failure to discuss particular contentions or evidence
does not mean that it did not consider them in reaching its decision. See Lowder v.
Dep’t of Homeland Sec., 504 F.3d 1378, 1383 (Fed. Cir. 2007); Hartman v. Nicholson,
483 F.3d 1311, 1315 (Fed. Cir. 2007); Charles G. Williams Const., Inc. v. White, 326
2007-3314 3
F.3d 1376, 1380 (Fed. Cir. 2003); Carolina Tobacco Co. v. Bureau of Customs & Border
Prot., 402 F.3d 1345, 1350 (Fed. Cir. 2005). “All that it means is that the author of the
opinion, for whatever reasons, did not deem it necessary or appropriate specifically to
discuss those points.” Lowder, 504 F.3d at 1383. Although the Board did not discuss
Mr. Smyth’s declaration, there is no reason to think that it did not consider all of the
evidence before it, including the Smyth declaration. Furthermore, Lyons does not
explain how this declaration would have altered the Board’s decision.
Lyons contends that the record before the Board was incomplete because the
Department failed to submit to the Board his answers to the Department’s administrative
charges against him. He asserts that such failure violated 5 C.F.R. §1205.25, which
requires the Department’s response to the Board to contain “[a]ll documents contained
in the agency record of action.” The administrative judge, however, had issued an order
that the Department “shall not file documents that do not pertain to this appeal, even if
they were received from the appellant in reply to the proposed removal.” In light of this
order and Lyons’ opportunity to present additional information to the Board, which he
twice did, the Department cannot be faulted for failure to provide the complete
administrative record to the Board.
To the extent that Lyons asserts a violation of the Whistleblower Protection Act
(“Act”), Pub.L. No. 101-12, 103 Stat. 16 (1989) (codified in sections of 5 U.S.C.), based
on the filing of his EEO claim and his appeal of his suspension, the Act requires him to
show that he made a disclosure of protected subject matter. See 5 U.S.C. §
2302(b)(8)(A). As the Board correctly found, he did not do so, and, therefore, did not
present a valid claim under the Act. The Board properly rejected that defense as well.
2007-3314 4
CONCLUSION
The Board’s decision is
AFFIRMED.
2007-3314 5