               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

                                         05-3011


                                 DEIRDRE B. GARNER,

                                                       Petitioner,

                                            v.

                          DEPARTMENT OF THE TREASURY,

                                                       Respondent.

                          ______________________________

                           DECIDED: March 8, 2005
                          ______________________________



Before MAYER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and CLEVENGER,
Circuit Judge.

PER CURIAM.

       The petitioner, Deirdre B. Garner, seeks review of the final decision of the Merit

Systems Protection Board (“Board”) that sustained the Treasury Department (the

“Agency”)’s removal of Garner for misusing travel funds and failing timely to pay an

outstanding travel account balance. Garner v. Dep’t of the Treasury, No. AT-0752-03-

0064-I-1 (M.S.P.B. Sept. 27, 2004) (“Board Op.”) (reversing in part initial decision of

Feb. 25, 2003 (“Initial Decision”)). We affirm.
                                            I

      The record sets forth the following basic facts, which Garner does not dispute.

Garner was a Mail and File Clerk Supervisor with the Internal Revenue Service (IRS).

Board Op. at 1. At the time of her removal in October 2002, she had been a supervisor

for approximately two years, had more than eighteen years of service with the Agency,

and had received several performance awards. Initial Decision at 6. She had also been

previously disciplined with a one-day suspension for misuse of a government credit card

and failure to timely pay travel charges. Board Op. at 2.

      Garner was scheduled for official travel from August 7 through August 10, 2001.

On August 7, she signed a request for an approved travel advance of $470.            The

request form showed that she owed the agency $2,400 from previous advances. The

disbursing employee apparently misread the form and mistakenly gave Garner $2,400,

an amount $1,930 in excess of the approved $470. Garner took the $2,400 and left on

her trip the same day without attempting to return the excess or notify anyone that she

had received more than the approved advance. Initial Decision at 2-3.

      As a result of this overpayment, Garner, after filing travel vouchers and receiving

credits, owed the government $2,276.03 as of December 10, 2001, which was still

unpaid on March 1, 2002, nearly seven months after her trip. On March 6, Garner’s

supervisor, Karen Smith, received a letter from the IRS budget office stating that

Garner’s “[o]utstanding balance should be paid in full.”    (Resp’t Br. App. at 35-37.)

Smith met with Garner to discuss her overdue account on April 2, 2002. Initial Decision

at 4. The next day, Garner sent Smith a memorandum promising to repay the balance

due by May 15, 2002. (Garner erroneously wrote this due date as “5/15/01”, but it is




05-3011                                     2
clear from other dates referenced that “01” is a typographical error and should have

been “02.”) Id.; (Resp’t Br. App. at 38.) Garner’s memorandum further stated that she

“was not aware of the time factor involved in paying the outstanding balances” because

she relied upon secretaries to handle her travel paperwork and had never done it

herself. (Resp’t Br. App. at 38.) Despite her written promise to pay by May 15, Garner

did not clear her balance until June 11, 2002, nearly a month after her deadline and ten

months after receiving the excessive advance. Initial Decision at 4.

      The agency began proceedings culminating in Garner’s removal from service on

two charges: (1) misuse of travel funds to which Garner was not entitled, based upon

her acceptance of the excess $1,930 advance; and (2) failure to timely pay her

outstanding travel balance. Upon Garner’s initial appeal to the Board, the administrative

judge held that the agency had proved only the second charge and mitigated Garner’s

penalty to a fourteen-day suspension without pay. Initial Decision at 1-7. Upon the

Agency’s petition, the Board reversed the initial decision in part to find that the agency

proved both charges, and sustained Garner’s removal. Board Op. at 1.

                                            II

      We must affirm the Board’s decision unless it is arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law; obtained without procedures

required by law, rule, or regulation having been followed; or unsupported by substantial

evidence. 5 U.S.C. § 7703(c) (1998); see Kewley v. Dep’t of Health & Human Servs.,

153 F.3d 1357, 1361 (Fed. Cir. 1998).     On appeal, Garner seeks reinstatement, back

pay, and a lesser penalty of suspension “[i]f punishment is deemed appropriate” on two

grounds.   First, she argues that “[t]here is no evidence of alleged misuse of travel




05-3011                                     3
funds.” (Pet’r Br. at 1.) Second, Garner contends that her penalty is excessive in light of

the relevant factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280,

305-06 (1981). Garner’s arguments fail to persuade us that the Board acted improperly

in sustaining her removal.

      The record supports the Board’s finding that Garner misused travel funds based

upon her acceptance of $1,930 in excess of her approved travel advance. Garner

argues that her advance was “approved, processed and disbursement was made” a few

hours before she had to “catch a flight” and that she “did not complete nor review the

paperwork,” but instead “merely signed what was presented to [her] by the secretary”

and “never received any other guidance as [to] how to proceed.” (Pet. Br. at 3.) The

Board found that Garner had knowingly accepted an amount greatly in excess of the

amount she requested. The Board further found that no plausible reason would support

any view that the amount she received was correct. The Board held that knowing

receipt of such an excessively erroneous amount for travel funds constituted misuse of

travel funds. We agree with the Board; substantial evidence supports its conclusion.

      Garner argues that she “was not made aware of the policy for travel in

Examination Branch,” (Pet. Br. at 4), and that “[i]f there was errors made [sic], it should

have been caught by those people,” referring to the section secretary and the reviewing

and disbursing officials. (Resp’t Br. App. at 27 (Oral Reply of Deidre Garner, July 31,

2002).) These excuses do not relieve Garner of individual responsibility. Not only was

she a supervisor who had traveled on business before, but she had also been

previously disciplined for failure to pay travel charges, and so she presumably knew or

should have known that she bore significant responsibility for her own travel advances.




05-3011                                     4
      Garner contends that the penalty of removal was excessive in light of the record

showing her lack of knowledge of travel accounting procedures and her otherwise

commendable job performance. We uphold a penalty determination unless it is “clearly

excessive or an abuse of discretion.” Coleman v. United States Secret Serv., 749 F.2d

726, 729 (Fed. Cir. 1984) (citing Douglas, 5 M.S.P.R. at 305-06). Here, the factors

supporting removal include Garner’s past discipline for credit card misuse and failure to

timely pay travel expenses, as well as her position as a supervisor, who is “held to a

higher standard of conduct than other employees.” Fischer v. Dep’t of the Treasury, 69

M.S.P.R. 614, 619 (1996). In light of these factors, we cannot say the Board abused its

discretion or imposed an excessive penalty.

                                    CONCLUSION

      The decision of the Board is affirmed.




05-3011                                    5
