Lloyd v. Department of Army , 180 F. App'x 911 ( 2006 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is
not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-3003
JEFFREY L. LLOYD, SR.,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
__________________________
DECIDED: April 7, 2006
__________________________
Before MICHEL, Chief Judge, NEWMAN, and MAYER, Circuit Judges.
PER CURIAM.
Jeffrey L. Lloyd, Sr. appeals from the final decision of the Merit Systems
Protection Board, which affirmed his removal based on the charges of unauthorized
possession and misuse of government property, but modified the initial decision by not
sustaining the charge of false statements, misrepresentations, and concealment of
material facts. Lloyd v. Dep’t of the Army, 99 M.S.P.R. 342 (2005). We affirm.
We must affirm the board’s decision unless it was arbitrary, capricious, an abuse
of discretion, or unlawful; procedurally deficient; or unsupported by substantial
evidence. See 5 U.S.C. § 7703(c) (2000). Lloyd argues on appeal, inter alia, that the
living quarters allowance (“LQA”) funds he was advanced were not government property
once they were in his possession. However, Lloyd signed a statement of understanding
providing that the funds would be given to the landlord and would be used for no other
purpose than as set forth in an approved lease. The lease for which he was approved
required advance payment for the entire lease term. Therefore, although the LQA funds
were in Lloyd’s possession, he did not own them outright and the government retained a
property interest in them. Moreover, the government’s statutory authority under 5
U.S.C. § 5922(b)* to recover those funds by setoff against Lloyd’s pay did not alter its
interest in them. Thus, the board properly found the funds to be government property.
And, because, as Lloyd admitted, he was required to use the advanced LQA funds
within ten days to pay the landlord for the entire lease term, substantial evidence
supports the board’s conclusion that he possessed those funds without authorization
and misused them.
*
5 U.S.C. § 5922(b) provides in pertinent part:
(b) Allowances granted under this subchapter may be paid in advance, or
advance of funds may be made therefor, through the proper disbursing
official in such sums as are considered advisable in consideration of the
need and the period of time during which expenditures must be made in
advance by the employee. An advance of funds not subsequently
covered by allowances accrued to the employee under this subchapter is
recoverable by the Government by—
(1) setoff against accrued pay, compensation, amount of retirement credit,
or other amount due the employee from the Government; and
(2) such other method as is provided by law for the recovery of amounts
owing to the Government.
06-3003 2
Lloyd also contends that the penalty of removal was unreasonable. However, we
“cannot and will not disturb a penalty unless it is unauthorized or exceeds the bounds of
reasonableness because it is so harsh and unconscionably disproportionate to the
offense that it amounts to an abuse of discretion, or where the record is devoid of any
basis demonstrating reasonableness.” Dominguez v. Dep’t of the Air Force, 803 F.2d
680, 684 (Fed. Cir. 1986) (citing Gonzales v. Defense Logistics Agency, 772 F.2d 887(Fed. Cir. 1985)). Here, the penalty is not outside those permissible bounds. The
agency properly construed the Douglas factors and imposed a penalty within the table
of penalties for the substantiated charges. Although the board only sustained two of the
three charges initially brought against Lloyd, we see nothing in the record to indicate
that the agency desired a lesser penalty absent the unsubstantiated charge. We also
believe, despite Lloyd’s argument to the contrary, that the unauthorized possession and
misuse charges describe “two separate acts of misconduct that are not dependent upon
each other and that do not comprise a single, inseparable event.” See Chauvin v. Dep't
of the Navy, 38 F.3d 563, 565 (Fed. Cir. 1994).
Finally, Lloyd has not established any harmful procedural errors. He was
removed in response to the amended notice of proposed removal, and he was given
adequate time to respond, and did respond, to those amended charges.
06-3003 3