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 remo val based on the charge s of unauthorized possession and misuse of government property, but modified the initial decision by not sustaining the charge of fa lse statements, mi srepresentations, 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 decis ion unless it was arbitrary, capricious, an abuse of discretion, or unlawful ; procedurally deficient; or unsupported by substantial

evidenc e. See 5 U.S.C. § 7703(c) (2000). Lloyd argues on appeal, inter alia , that the living quarters allowance (“LQA”) funds he was advanc ed were not government property once they were in his possession. However, Lloyd signed a statem ent of understanding providing that the funds would be given to the land lord 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 pay ment for the entire lease term. Ther efore, although the LQA funds were in Lloyd’s possession, he did not own t hem outright and the government retained a property interest in them. Moreover, t he government’s statut ory authority under 5 U.S.C. § 5922(b) * to recover those funds by setoff ag ainst 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 t he entire lease term, s ubstantial evidence supports the board’s conclus i on that he possessed t hose f unds without authorization

and misused them.

* 5 U.S.C. § 5922(b) prov ides in pertinent part: (b) Allowances granted under this s ubchapt er may be paid in adv ance, or advance of funds may be made theref or, through the proper disbursing official in s u ch sums as are consi dered ad visable in c onsideration of the need and the period of time during which expenditures must be made in advance by the employee. An adv anc e of funds not subsequently covered by allowances accrued to t he employee under this subchapter is recoverable by the Government by— (1) setoff against accr ued pay, compensat ion, amount of retirement credit, or other amount due t he 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 2Lloyd also contends that t he penalty of removal was unreasonable. Howeve r, we “cannot and will not disturb a penal ty unless it is unauthorize d or exceeds the bounds of

reasonableness bec ause it is s o harsh and unc ons cionably disproportionate to the

offense that it amounts to an abuse of disc re tion, or where the record is dev oid of an y basis dem onstrating 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 8 8 7 (Fed. Cir. 1985)). H e re, 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 a gainst Lloy d, we s ee nothing in the record to indicate that the agency desir ed 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 s i ngle, inseparable event.” See Chauv in v. Dep' t of the Navy , 38 F.3d 563, 565 (Fed. Cir. 1994). Finally, Lloyd has not established any harmful procedural errors. He wa s removed in response to the amended notic e of proposed removal, and he was given adequate time to respond, and did res pond, to those amended charges.

06-3003 3