                 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

                                       04-3262

                                MORRIS C. BROCKS,

                                                      Petitioner,

                                           v.

                           DEPARTMENT OF THE ARMY,

                                                      Respondent.


                           __________________________

                           DECIDED: May 6, 2005
                           __________________________

Before RADER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and PROST, Circuit
Judge.

PER CURIAM.

      Morris C. Brocks (“Brocks”) petitions for review of a decision by the Merit

Systems Protection Board (“Board”) affirming his removal by the Department of the

Army (“Army”) due to his misuse of a government credit card. Brocks v. Dep’t of the

Army, No. DC0752030736-I-1 (M.S.P.B. Oct. 30, 2003). We affirm.

                                  I. BACKGROUND

      Brocks was a Lead Orthopedic Technician, a civilian employee, with the Army.

On July 5, 2001, he signed an agreement to the terms and conditions of using the

government credit card, including that he was to use it for official government business

only and not for personal, family, or household purposes.           However, on fourteen
different occasions between July 25, 2001 and November 1, 2001, Brocks made

unauthorized charges totaling $3,119.50 to the government credit card, including cash

advances. On two separate occasions in November 2002 and February 2003, Brocks

received written notice that his government credit card was delinquent and that he must

pay the outstanding balance immediately.

      On June 17, 2003, the Army proposed Brocks’s removal from federal service for

misuse of the government credit card, and thereafter, the deciding official of the Army,

finding that misuse of a government credit card for personal gain was a serious offense,

determined that removal was appropriate. In his written determination, the deciding

official considered the twelve Douglas factors, including “consistency of penalty with

other employees’ penalties for similar offenses,” where he found “I am unaware of any

other similar case during my tenure at DeWitt Health Care Network.           However, I

understand that the offense of misappropriation of company/agency assets is grounds

for dismissal throughout corporate America.”      See Douglas v. Veterans Admin., 5

M.S.P.B. 313 (1981). Brocks was removed from federal service effective July 25, 2003.

At the time of his termination, Brocks had not repaid his unauthorized charges.

      Brocks appealed his removal to the Board.            On October 30, 2003, the

administrative judge held that the Army had satisfied its burden of proof by a

preponderance of the evidence that the charges against Brocks were proper, the

deciding official considered all the mitigating factors, and the removal was reasonable

for the sustained charges and promoted the efficiency of service. The administrative

judge specifically noted that the deciding official “described his familiarity with the

Douglas factors and explained how he used them in his penalty deliberations.” Brocks




04-3262                                    2
at 4. When the full Board denied Brocks’s petition for review on March 26, 2004, the

initial decision of the administrative judge became the final decision of the Board.

Brocks timely sought review in this court.

       We have jurisdiction to review the Board’s decision pursuant to 28 U.S.C.

§ 1295(a)(9).

                                     II. DISCUSSION

                                 A. Standard of Review

       We must sustain the Board’s decision 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); Rosete v. Office of Pers. Mgmt.,

48 F.3d 514, 516 (Fed. Cir. 1995).

                                       B. Analysis

       On appeal, Brocks focuses on the severity of his penalty, asserting that it was his

first offense and that the Army had options other than terminating him. Brocks further

argues that the administrative judge improperly failed to consider that another employee

received a lesser penalty for misuse of a government credit card, claiming: “The fact is

the one other person Ms. Nino [sic] situation is the same. Although she work [sic] in a

different section she still works under the Hospital Commander. Whether you are in

Alpha Company or Bravo Company punishment of the first offense should be the

same.” Brocks asks this court to reduce the punishment and return him to his position

in the federal service.




04-3262                                      3
      The Army responds that Ms. Nino was not a similarly situated employee,

because she was in a different division with a different chain of command, and because

she repaid the unauthorized charges on her government-issued credit card. We agree,

noting that the administrative judge found that the deciding official considered all the

Douglas factors, including “consistency of the penalty with those imposed upon other

employees for the same or similar offenses,” Douglas, 5 M.S.P.B. at 13, and that “the

penalty of the removal is reasonable and promotes the efficiency of service.” Brocks at

6. We conclude that Brocks’s arguments do not provide a sufficient basis to overturn

the Board’s decision, and we therefore affirm.




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