                     NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                     2006-3326

                               BLANCHE P. BOURM,

                                                    Petitioner,

                                         v.

                          DEPARTMENT OF THE ARMY,

                                                    Respondent.

                          __________________________

                          DECIDED: December 7, 2006
                          __________________________

Before MICHEL, Chief Judge, LOURIE and PROST, Circuit Judges.

PER CURIAM.

      Petitioner Blanche Bourm petitions for review of the final order of the Merit

Systems Protection Board (“Board”) sustaining the decision of the Department of the

Army (the “agency”) to remove Ms. Bourm. We affirm.

                                  BACKGROUND

      At the time of her removal, Ms. Bourm was employed as a Food Service Worker

at Walter Reed Army Medical Center in Washington, D.C. On August 24, 2005, the

agency gave Ms. Bourm a Notice of Proposed Removal charging her with “Wrongful

Receipt and Retention of Workers’ Compensation Benefits.” Specifically, the notice

alleged that between approximately April 4, 2003, and July 10, 2004, Ms. Bourm

received and retained workers’ compensation benefits to which she was not entitled. A

union representative, Francine Brown, provided a written response to the charge on
behalf of Ms. Bourm. The agency issued a decision on the proposal on September 29,

2005, and removed Ms. Bourm from federal service effective October 1, 2005. The

decision letter informed her of her appeal rights.

       On October 8, 2005, Ms. Bourm filed an appeal with the Board. In her February

7, 2006, initial decision, the administrative judge found that the agency proved the

charge of “Wrongful Receipt and Retention of Workers’ Compensation Benefits.”

Bourm v. Dep’t of the Army, No. DC0752060014-I-1, slip op. at 3-10 (M.S.P.B. Feb. 7,

2006) (“Initial Decision”). The administrative judge held that there was a nexus between

Ms. Bourm’s misconduct and the efficiency of the service and concluded that the

penalty of removal was reasonable. Id., slip op. at 18-26. In addition, the administrative

judge rejected Ms. Bourm’s affirmative defense of harmful procedural error. Id., slip op.

at 10-18.

       Ms. Bourm petitioned for full board review of the administrative judge’s decision.

The Board denied the petition for review, making the administrative judge’s initial

decision the final decision of the Board.              Bourm v. Dep’t of the Army, No.

DC0752060014-I-1, slip op. at 2 (M.S.P.B. June 5, 2006). Ms. Bourm timely petitioned

this court for review of the Board’s final decision.

                                       DISCUSSION

       This court has jurisdiction to review a final order or decision of the Board under 5

U.S.C. § 7703(b)(1). In reviewing the Board’s decision, this court

       shall review the record and hold unlawful and set aside any agency action,
       findings, or conclusions found to be
       (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



2006-3326                                     2
      (3) unsupported by substantial evidence . . . .

5 U.S.C. § 7703(c) (2006).

      In her pro se appeal, Ms. Bourm makes, in essence, four types of arguments: (1)

the Board incorrectly determined that the agency proved the charge of “Wrongful

Receipt and Retention of Workers’ Compensation Benefits,” (2) the Board incorrectly

determined that the penalty of removal was reasonable, (3) certain of the administrative

judge’s evidentiary rulings were improper, and (4) the Board erred in rejecting her

affirmative defense of harmful procedural error.

                                              A

      Ms. Bourm raises several issues with respect to the Board’s determination that

the agency proved the charge of “Wrongful Receipt and Retention of Workers’

Compensation Benefits.” The parties do not dispute that Ms. Bourm suffered an on-the-

job injury and was subsequently approved for benefits under the Federal Employees’

Compensation Act (“FECA”) from the Office of Workers’ Compensation Programs

(“OWCP”) of the Department of Labor on October 7, 2002.               At first, Ms. Bourm

remained off duty while receiving OWCP benefits. On April 4, 2003, however, Ms.

Bourm returned to full-time duty, yet she continued to receive OWCP benefits following

her return and up until July 10, 2004.

      After hearing testimony from a number of witnesses, the administrative judge

found that Ms. Bourm had been informed that she was not entitled to receive OWCP

benefits upon her return to duty.        Initial Decision, slip op. at 10.   This finding is

supported by substantial evidence. For instance, among the evidence presented was

testimony by a FECA case manager at the agency, who stated that he personally




2006-3326                                     3
provided Ms. Bourm with a document informing her that she was required to return any

compensation check received for a period during which she had worked. Id., slip op. at

4-5.

       Nevertheless,   Ms.    Bourm    makes     several   arguments     implicating   the

administrative judge’s factual finding that Ms. Bourm was notified that she was not

entitled to receive OWCP benefits after she returned to work. For example, Ms. Bourm

appears to argue that she did not receive certain documents from the Department of

Labor because they were sent to the wrong address.            She also argues that the

administrative judge and the agency improperly concluded that Ms. Bourm’s receipt and

retention of OWCP benefits after her return to work was not the result of her honest

mistake. As discussed above, however, the record contains unrebutted testimony that

Ms. Bourm had been personally informed that she was not entitled to receive OWCP

benefits after her return to work. Thus, the administrative judge’s finding is supported

by substantial evidence.

       Ms. Bourm also argues that the administrative judge was biased, rendering her

unable “to make correct findings of fact and law.” But Ms. Bourm has failed to identify

any facts to support this allegation and thus fails to establish that the administrative

judge’s conclusions are unsupported by substantial evidence.

       Next, Ms. Bourm argues that the charge of “Wrongful Receipt and Retention of

Workers’ Compensation Benefits” is actually two charges and that the agency has failed

to show “what is either illegal or wrongful about ‘retention of benefits.’” We reject this

argument.    One, not two, charges were at issue, and both the agency and the

administrative judge found that Ms. Bourm’s “receipt and retention” of workers’




2006-3326                                   4
compensation benefits was wrongful because she was on notice that she was not

entitled to receive benefits after her return to work.

                                              B

       Ms. Bourm also alleges that the agency failed to prove a nexus between the

alleged misconduct and the efficiency of the service. Her arguments in this regard,

however, are actually directed towards whether the administrative judge properly

determined that the agency proved the charge and whether the penalty of removal was

reasonable. As discussed above, we affirm the administrative judge’s determination

that the agency proved the charge of “Wrongful Receipt and Retention of Workers’

Compensation Benefits.”        With respect to whether the penalty of removal was

reasonable, Ms. Bourm argues that the administrative judge was precluded from

conducting meaningful review of the reasonableness of the penalty because the

deciding official, Sergeant Foster, was confused as to the meaning of certain terms on a

checklist of the Douglas factors she filled out prior to Ms. Bourm’s removal.        See

Douglas v. Veterans Admin., 5 M.S.P.R. 280 (M.S.P.B 1981). She further argues that

the agency and the administrative judge failed to fully consider all of the Douglas

factors.

       While the administrative judge acknowledged that Sergeant Foster was initially

confused as to the meaning of certain terms, Sergeant Foster testified at the hearing

and the administrative judge determined that Sergeant Foster had “reviewed each of the

Douglas factors extensively and appeared to have evaluated them in a manner

consistent with the penalty imposed.”             Id., slip op. at 19.   Furthermore, the

administrative judge specifically analyzed the removal penalty in light of the relevant




2006-3326                                     5
Douglas factors and concluded that the penalty was within the bounds of

reasonableness. Id., slip op. at 19-26. For example, the administrative judge found that

while Ms. Bourm’s length of service and lack of prior disciplinary problems were strong

mitigating factors, they were outweighed by the seriousness of the offense and the

undisputed evidence that Ms. Bourm should have known that she could not receive and

retain OWCP benefits after she returned to work. Moreover, although there was no

charge of “Wrongful Receipt and Retention of Workers’ Compensation Benefits” on the

agency’s table of penalties, both the agency and the administrative judge analogized

this offense to the offenses of “Conduct Unbecoming a Federal Employee” and

“Stealing,” both of which carry a penalty up to and including removal. Thus, there is

substantial evidence in support of the administrative judge’s conclusion.

                                            C

       Next, Ms. Bourm makes a number of arguments related to certain of the

administrative judge’s evidentiary rulings. Ms. Bourm argues that the administrative

judge erred by admitting certain documents into evidence and by allowing the agency’s

redirect examination of a witness to exceed the scope of the cross-examination.

Evidentiary rulings, however, are matters within the administrative judge’s discretion

and these rulings will not be disturbed by this court absent an abuse of discretion.

Curtin v. Office of Pers. Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 1988). We see no

abuse of discretion in this case.

                                            D

       Ms. Bourm next argues that the administrative judge erred in rejecting her

affirmative defense of harmful procedural error.      She argues that the agency first




2006-3326                                   6
committed harmful procedural error when it considered a written response to the charge

filed on her behalf by Francine Brown, a union steward. Ms. Bourm asserts that the

agency’s collective bargaining agreement requires a union representative to be

designated “in writing” and that she never made a written designation of Ms. Brown as

her representative. Based upon the record, the administrative judge concluded that Ms.

Bourm failed to establish that the agency might have reached a different conclusion had

the agency not considered the allegedly unauthorized response from the union

representative. Id., slip op. at 14. We see no error in this conclusion.

       Ms. Bourm also argues that an agency employee violated Ms. Bourm’s privacy

rights, and but for this violation, Ms. Bourm would have not been removed from service.

Candace Shupay is a FECA Program Manager at the agency. Ms. Bourm alleges that

Ms. Shupay downloaded a record indicating the amount of the overpayment of benefits

to Ms. Bourm from the Department of Labor website and disseminated this information

to Sergeant Foster in violation of the Privacy Act of 1974, 5 U.S.C. § 552a.       For

purposes of this appeal, we need not and do not decide whether the agency violated the

Privacy Act. Although Ms. Bourm alleges that she would not have been removed but for

an alleged violation of the Privacy Act, she fails to point out why this would be so.

Indeed, the record in this case indicates that the Department of Labor independently

notified the agency of Ms. Bourm’s wrongful receipt of OWCP benefits.

                                     CONCLUSION

       We have considered the remainder of Ms. Bourm’s arguments and we find them

unconvincing. For the foregoing reasons, we affirm the decision of the Board.

       No costs.




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