                  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
                                        05-3073

                              ROBERT E. PHILLIPS, JR.,

                                                             Petitioner,

                                           v.

                         UNITED STATES POSTAL SERVICE,

                                                             Respondent.

                           ___________________________

                           DECIDED: July 8, 2005
                           ___________________________

Before MAYER, RADER, and PROST, Circuit Judges.

RADER, Circuit Judge.

       The Merit Systems Protection Board (Board) affirmed the United States Postal

Service’s (Agency) thirty-day suspension of Mr. Robert E. Phillips without pay for

unauthorized use of a government-owned law enforcement vehicle (LEV). Phillips v.

United States Postal Serv., No. CH-0752-04-0660-I-1 (M.S.P.B. Oct. 15, 2004)

(Decision).   Because substantial evidence supports the Board’s decision, this court

affirms.

       On November 6, 2003, Mr. Phillips admits taking a government-owned LEV for

the unauthorized purpose of shopping for a personal home computer. After a proper

investigation regarding the incident, the Agency suspended Mr. Phillips for thirty days

without pay, the minimum penalty required by 31 U.S.C. § 1349(b) for the charged
offence. The Board affirmed the charges against Mr. Phillips and the penalty imposed.

Decision, slip op. at 6. Mr. Phillips appeals.

       By statute, this court’s review of a final decision from the Board is limited. A

Board decision may not be set aside unless it is: (1) arbitrary or capricious, an abuse of

discretion, or otherwise not in accordance with law; (2) obtained without procedure

required by law, rule, or regulation having been followed; or (3) unsupported by

substantial evidence. 5 U.S.C. § 7703(c) (2000).

       On appeal, Mr. Phillips contends that his use of the LEV was for official use, and

thus not unauthorized, because he needed to be able to use the LEV to respond to

emergencies should one arise while he was shopping. He also noted that he used his

personal computer for business purposes.         The Board dismissed these contentions

because Mr. Phillips did not show why he could not have shopped for a computer when

he was off duty, particularly because he admitted having a back-up computer at home in

addition to the broken computer he was shopping to replace. Decision, slip op. at 3.

The Board also dismissed Mr. Phillips’s contention that he needed to replace his

personal computer for business purposes. Id. The record shows that the Board had

good reason to make these findings.          Substantial evidence supports the Board’s

findings that Mr. Phillips’s use of the LEV was unauthorized.

       Mr. Phillips also argues several procedural errors by the Agency. Because he

was transferred to a different office shortly after the incident, Mr. Phillips contends that

his new superior should have been the deciding official. Mr. Phillips also alleges that

the Postmaster General should have issued his suspension, that the Agency failed to

produce requested documents, and that his suspension was procedurally defective due




05-3073                                      2
to the lapse of approximately eight months between the time of the incident and the time

of the suspension. Even assuming the facts underlying these allegations in favor of Mr.

Phillips, he has not shown that any of these alleged procedural errors would have

changed the outcome of the statutorily mandated minimum of a thirty-day suspension.

See 5 C.F.R. § 1201.56(a)(2)(iii), (b)(1), (c)(3) (2004) (requiring a showing that a

procedural error was made that likely caused a different result than would have been

reached in the absence or cure of the error). Consequently, Mr. Phillips’s arguments of

procedural error fail.

       This court has considered all of Mr. Phillips’s additional arguments and finds

them unpersuasive. Because substantial evidence supports the Board’s decision and

Mr. Phillips does not show that any procedural errors resulted in an outcome that would

have been different absent those errors, the Board’s decision is affirmed.




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