NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3186
JACQUELYN B. KING,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
Jacquelyn B. King, of Little Rock, Arkansas, pro se.
James W. Poirier, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent. With him on the brief
were Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson, Director, and
Patricia M. McCarthy, Assistant Director.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3186
JACQUELYN B. KING,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
__________________________
DECIDED: October 30, 2007
__________________________
Before NEWMAN and DYK, Circuit Judges, and YEAKEL,* District Judge.
NEWMAN, Circuit Judge.
Petitioner Jacquelyn B. King, pro se, appeals a decision of the Merit Systems
Protection Board affirming her removal from federal service. King v. Dep't of the Army, No.
DA0752060514-I-1 (MSPB Oct. 27, 2006). Because we discern neither legal nor
______________
* Hon. Lee Yeakel, District Judge, United States District Court for the Western District of
Texas, sitting by designation.
procedural error, nor an abuse of discretion, and substantial evidence in the record
supports the Board's decision, we affirm.
BACKGROUND
Ms. King was employed by the Department of the Army (the agency) as an Equal
Employment Opportunity (EEO) Manager. In the course of her employment she was
erroneously issued a $4,158.00 travel check. Upon discovery of the error, her superiors
explained that she was not entitled to these funds and cautioned her not to cash the check.
Ms. King cashed the check, then stated that she never received the check, and also that
her estranged husband cashed the check. Ms. King eventually admitted her misconduct.
However, the agency removed her from service, on grounds of disgraceful conduct of a
federal employee, and making false statements and lying to her supervisor.
Ms. King appealed to the Board. The administrative judge concluded that the
agency had proved its charges by a preponderance of the evidence. 5 U.S.C. '7701(c)(1);
5 C.F.R. '1201.56, and that the removal action promoted the efficiency of the service, and
was the appropriate penalty. The full Board denied review, and this appeal followed.
DISCUSSION
A decision of the Board must be affirmed unless it is (1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been followed; or (3) unsupported by
substantial evidence. 5 U.S.C. '7703(c)(2000); Cheeseman v. Office of Pers. Mgmt., 791
F.2d 138, 140 (Fed. Cir. 1986).
2007-3186 2
The Charge of False Statements
Ms. King states that the Board erred in charging her with both the offenses of
engaging in misconduct by cashing the travel check, and making false statements to her
superiors. She cites Walsh v. Dep't of Veterans Affairs, 62 M.S.P.R. 586, 595 (1994)(an
agency may not separately charge an employee with misconduct and with making false
statements regarding the misconduct). However, the Supreme Court has reversed the
principle stated in Walsh. In LaChance v. Erickson, 522 U.S. 262, 268 (1998) the court
held that neither the Due Process Clause of the Constitution nor the Civil Service Reform
Act of 1978, 5 U.S.C. '1101 et seq., precludes "a government agency [from taking] adverse
action against an employee because the employee made false statements in response to
an underlying charge of misconduct." That she was charged with separate offenses does
not constitute reversible error.
The Appropriateness of the Removal Penalty
Ms. King admitted that she committed the offenses, and argues that the penalty of
removal was disproportionately extreme, and basically unfair. She points to Army
Regulations A.R. 600-700, ch. 751, Appendix A - Table of Penalties for Various Offenses,
[54-61] listing various offenses and suggested penalties for first and subsequent offenses.
For example, the Regulations include the following:
Nature of Offense. a. False statements, misrepresentations, or fraud in
entitlements, includes falsifying information on a time card, leave form, travel
voucher, or other document pertaining to entitlements.
2007-3186 3
The corresponding penalties are listed as follows:
First Offense. Written reprimand to removal;
Second Offense. 30 day suspension to removal; and,
Third Offense. Removal.
Ms. King argues that the penalty should be at a lower end of the range for a first offense,
arguing that removal is not reasonable on its face. She contests the AJ's conclusion that
her conduct was disgraceful and egregious, points out that this was her first episode of
misconduct, and states that the AJ did not reasonably and thoroughly consider all of the
mitigating Douglas factors. Douglas v. Veterans Admin., 5 M.S.P.R. 280, 308 (1981).
The Board has the authority to mitigate the penalty when it finds that the sanction is
clearly excessive, disproportionate, or arbitrary, capricious, or unreasonable. Id. at 284.
The dozen Douglas factors are guides to balancing the mitigating and the aggravating
circumstances of a case to achieve a fair penalty. Id. (disproportionate penalties violate
"the principle of like penalties for like offense"). After receiving testimony for and against
the petitioner, the AJ concluded: "Considering the evidence of record, I find that the agency
has shown that it gave adequate consideration to the Douglas factors and thereafter
properly exercised its managerial discretion in selecting the penalty of removal.") King, op.
at 5.
We have considered all of Ms. King's arguments on appeal, including an allegation
of reprisal for prior EEO activity. We discern no error of law or procedure, or an abuse of
discretion, in the decision affirming the Army's removal action.
2007-3186 4