                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                      2008-3268

                                 ROBIN CRUMPTON,

                                                            Petitioner,

                                          v.

                          DEPARTMENT OF COMMERCE,

                                                            Respondent.


        David O’Brien Suetholz, Segal Lindsay & Janes, PLLC, of Louisville, Kentucky,
for petitioner.

       J. Reid Prouty, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy Director.

Appealed from: Merit Systems Protection Board
                       NOTE: This disposition is nonprecedential.



United States Court of Appeals for the Federal Circuit

                                      2008-3268


                                ROBIN CRUMPTON,

                                                             Petitioner,

                                           v.

                          DEPARTMENT OF COMMERCE,

                                                             Respondent.


    Petition for review of the Merit Systems Protection Board in CH0752070563-I-1


                          __________________________

                          DECIDED: March 6, 2009
                          __________________________


Before GAJARSA, CLEVENGER, and DYK, Circuit Judges.

PER CURIAM.


      Robin Crumpton seeks review of the final decision of the Merit Systems

Protection Board (“Board”) sustaining her removal from her position as a Statistical

Clerk with the Bureau of the Census, a part of the Department of Commerce (“agency”).

Crumpton v. Dep’t of Commerce, No. CH0752070563-I-1 (April 14, 2008). We affirm.

                                           I

      Ms. Crumpton was removed from her position effective June 29, 2007, for

alleged falsification and misrepresentation of documents and absence without leave.

She appealed her removal to the Board and was afforded a hearing before
Administrative Judge ("AJ") Julia Packard. The AJ concluded that the agency proved

by preponderant evidence that Ms. Crumpton submitted false medical documentation

and misrepresented her request for leave. The AJ also found that Ms. Crumpton had

been absent without leave for 101 hours from July 13-31, 2006.           Finding a nexus

between the proven charges and the agency’s ability to perform its mission, no harmful

procedural error, and the penalty of removal to be reasonable, the AJ sustained the

agency’s removal action.

                                             II

       Ms. Crumpton sought review of the AJ’s decision before the full Board. The

Board’s order denying her petition for review noted that there may be an issue

concerning the timeliness of her petition for review before the full Board. The Board,

however, expressly stated that “[w]e have not decided that issue because we conclude

that there is no new, previously unavailable, evidence and that the administrative judge

made no error in law or regulation that affects the outcome” (emphasis added). The

Board therefore finally denied the petition for review. Ms. Crumpton then timely sought

review in this court.

                                             III

       The scope of our review of a final Board decision is limited by statute. We must

affirm a final Board decision unless it is arbitrary, capricious, an abuse of discretion or

otherwise not in accordance with law.              Factual findings must be supported by

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




2008-3268                                2
      The only argument mounted by Ms. Crumpton before this court is that the Board

abused its discretion by denying her petition for review on the grounds that it was

untimely. She does not argue that the AJ was wrong on the merits of her case.

      The Board’s final decision is quite clear: it saw a potential timeliness issue in

Ms. Crumpton’s petition for review but it exercised its discretion to overlook that issue.

The Board concluded that no error had been committed by the AJ. In sum, the Board

affirmed the AJ’s decision on the merits: the agency sustained its charges by

preponderant evidence and the penalty of removal was reasonable in the

circumstances. We therefore must affirm the Board’s final decision.

                                         COSTS

      No costs.




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