               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



                                       06-3003



                              JEFFREY L. LLOYD, SR.,

                                                           Petitioner,

                                            v.


                           DEPARTMENT OF THE ARMY,

                                                          Respondent.


                          __________________________

                           DECIDED: April 7, 2006
                          __________________________


Before MICHEL, Chief Judge, NEWMAN, and MAYER, Circuit Judges.

PER CURIAM.

      Jeffrey L. Lloyd, Sr. appeals from the final decision of the Merit Systems

Protection Board, which affirmed his removal based on the charges of unauthorized

possession and misuse of government property, but modified the initial decision by not

sustaining the charge of false statements, misrepresentations, and concealment of

material facts. Lloyd v. Dep’t of the Army, 99 M.S.P.R. 342 (2005). We affirm.
      We must affirm the board’s decision unless it was arbitrary, capricious, an abuse

of discretion, or unlawful; procedurally deficient; or unsupported by substantial

evidence. See 5 U.S.C. § 7703(c) (2000). Lloyd argues on appeal, inter alia, that the

living quarters allowance (“LQA”) funds he was advanced were not government property

once they were in his possession. However, Lloyd signed a statement of understanding

providing that the funds would be given to the landlord and would be used for no other

purpose than as set forth in an approved lease. The lease for which he was approved

required advance payment for the entire lease term. Therefore, although the LQA funds

were in Lloyd’s possession, he did not own them outright and the government retained a

property interest in them.   Moreover, the government’s statutory authority under 5

U.S.C. § 5922(b)* to recover those funds by setoff against Lloyd’s pay did not alter its

interest in them. Thus, the board properly found the funds to be government property.

And, because, as Lloyd admitted, he was required to use the advanced LQA funds

within ten days to pay the landlord for the entire lease term, substantial evidence

supports the board’s conclusion that he possessed those funds without authorization

and misused them.




      *
             5 U.S.C. § 5922(b) provides in pertinent part:
             (b) Allowances granted under this subchapter may be paid in advance, or
             advance of funds may be made therefor, through the proper disbursing
             official in such sums as are considered advisable in consideration of the
             need and the period of time during which expenditures must be made in
             advance by the employee. An advance of funds not subsequently
             covered by allowances accrued to the employee under this subchapter is
             recoverable by the Government by—
             (1) setoff against accrued pay, compensation, amount of retirement credit,
             or other amount due the employee from the Government; and
             (2) such other method as is provided by law for the recovery of amounts
             owing to the Government.


06-3003                                    2
      Lloyd also contends that the penalty of removal was unreasonable. However, we

“cannot and will not disturb a penalty unless it is unauthorized or exceeds the bounds of

reasonableness because it is so harsh and unconscionably disproportionate to the

offense that it amounts to an abuse of discretion, or where the record is devoid of any

basis demonstrating reasonableness.” Dominguez v. Dep’t of the Air Force, 803 F.2d

680, 684 (Fed. Cir. 1986) (citing Gonzales v. Defense Logistics Agency, 772 F.2d 887

(Fed. Cir. 1985)). Here, the penalty is not outside those permissible bounds. The

agency properly construed the Douglas factors and imposed a penalty within the table

of penalties for the substantiated charges. Although the board only sustained two of the

three charges initially brought against Lloyd, we see nothing in the record to indicate

that the agency desired a lesser penalty absent the unsubstantiated charge. We also

believe, despite Lloyd’s argument to the contrary, that the unauthorized possession and

misuse charges describe “two separate acts of misconduct that are not dependent upon

each other and that do not comprise a single, inseparable event.” See Chauvin v. Dep't

of the Navy, 38 F.3d 563, 565 (Fed. Cir. 1994).

      Finally, Lloyd has not established any harmful procedural errors.         He was

removed in response to the amended notice of proposed removal, and he was given

adequate time to respond, and did respond, to those amended charges.




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