NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

JAMES E. KING,

Petitioner

v.

DEPARTMENT OF THE ARMY,

Respondent

______________________ 

2022-2152

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. AT-0752-21-0271-I-1.

______________________ 

Decided: April 26, 2024

______________________ 

CHRISTOPHER D. VAUGHN, The Vaughn Law Firm, LLC, 

Decatur, GA, for petitioner. 

 ELIZABETH MARIE DURFEE PULLIN, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, Washington, DC, for respondent. Also represented 

by BRIAN M. BOYNTON, TARA K. HOGAN, PATRICIA M.

MCCARTHY. 

______________________ 

Before TARANTO, CHEN, and HUGHES, Circuit Judges. 

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2 KING v. ARMY

PER CURIAM.

Petitioner James E. King appeals a final decision of the 

Merit Systems Protection Board, in which the Board 

sustained the Department of the Army’s decision to remove 

Mr. King from his position as an army civilian police 

officer. Because the Board’s decision was supported by 

substantial evidence and is otherwise in accordance with 

the law, we affirm.

I 

A 

Mr. King had been employed by the Department of the 

Army since 2009, as a Department of the Army Civilian 

Police Officer (DACP) at the Directorate of Emergency Services/Provost Marshal’s Office located on Fort Eisenhower,1 Georgia. In 2014, Mr. King was promoted to a 

higher graded position as a GS-0083-08 DACP officer, commonly referred to as a “Game Warden.” Mr. King remained 

in this position until he was removed in February 2021, after the agency sustained three charges of misconduct 

against him.

The authority and jurisdiction of a DACP working at 

Fort Eisenhower is specifically limited to “performing law 

enforcement or security functions on Fort [Eisenhower].” 

J.A. 275–77 (Aug. 14, 2020 Memorandum for Record describing DACP authority and jurisdiction, signed and

acknowledged by Mr. King); Army Regulation (AR) 190-56, 

¶ 5-2.a (Mar. 15, 2013). A DACP does not have authority to 

1 During Mr. King’s employment as a DACP, and at 

the time of the Board’s decision, his Army post was known 

as Fort Gordon, Georgia. However, as of October 2023, the 

post has been officially renamed Fort Eisenhower, Georgia. 

As such, this opinion only refers to the Army post under its 

current official name, Fort Eisenhower.

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KING v. ARMY 3

exercise law enforcement or security tasks outside of Fort 

Eisenhower. J.A. 275; AR 190-56, ¶ 5-2.d. Accordingly, 

DACPs are only permitted to wear their official uniform 

and badge while on duty at Fort Eisenhower or while traveling to and from work. J.A. 276; AR 190-56, ¶ 5-2.f. With 

limited exceptions, a DACP is not authorized to patronize 

off-post establishments while wearing their official uniform or badge. J.A. 276. Similarly, DACP are prohibited 

from carrying their service weapons while off duty. J.A. 

276; AR 190-56, ¶ 5-2.f. 

When performing law enforcement activities, a DACP 

is subject to the requirements of the Individual Reliability 

Program (IRP), which ensures that individuals performing 

such duties maintain the high standard of “character, 

trustworthiness, and fitness” expected of law enforcement 

and security professionals. J.A. 277; AR 190-56, ¶ 3-3.b. A 

DACP is prohibited from carrying a service weapon or performing any law enforcement or security duties if they are

disqualified as unreliable under the IRP. J.A. 277; AR 190-

56, ¶ 3-8.b. Additionally, because continued qualification 

for the IRP is a condition of employment, AR 190-56, ¶ 3-

4.b, disqualification can also serve as a basis for removal, 

J.A. 277; AR 190-56, ¶ 2-2.a. 

Should the agency subsequently propose removal, the 

DACP, as an “employee” under 5 U.S.C. § 7511, is entitled 

to receive written notice and an opportunity to respond to 

the proposed removal. See 5 U.S.C. § 7513 (describing procedures for removal of civil service employees). The same 

procedural process further establishes the right to appeal 

a final removal decision to the Board. 5 U.S.C. § 7513(d). 

B 

On or around October 16, 2020, the agency began an 

investigation into Mr. King after receiving allegations 

against him for misuse of government property and false 

reporting. Specifically, another officer alleged that

Mr. King’s game warden truck had been spotted at an offCase: 22-2152 Document: 57 Page: 3 Filed: 04/26/2024
4 KING v. ARMY

post restaurant during duty hours, when he was expected 

to be on post. Evidence collected during the investigation

indicated that Mr. King had used his game warden vehicle 

to dine at the alleged off-post restaurant during duty 

hours, without authorization, while wearing his DACP uniform and badge, while in possession of his service weapon. 

The investigating officer also discovered that the official 

duty log Mr. King had filled out for the day in question reflected that he had been performing security checks on post

at the time of the alleged off-post incident. After collecting 

the necessary statements from the witnessing and reporting officers and the waitstaff of the off-post restaurant, and 

conducting additional interviews with the relevant witnesses, the investigating officer prepared an Investigators 

Statement, giving “a final report” of the evidence that had 

been collected during the investigation. J.A. 267–68. The 

investigation was completed on November 9, 2020.

Prior to the October 2020 investigation, the agency 

identified no previous formal disciplinary actions against 

Mr. King during his time as a DACP. However, Mr. King

had received written counseling from his immediate supervisor concerning multiple instances of conduct-related incidents occurring between May and September of 2020, 

including “irregular attendance,” J.A. 10, and “key control 

concerns,” J.A. 85 (supervisory training officer stressing 

“the importance of key control” after receiving six keys—

that had been checked out by Mr. King—one of which had 

access to artillery, that had been left hanging in the lock of 

a desk drawer). And on October 19, 2020, Mr. King received 

a Letter of Counseling from the Deputy Director of his department addressing “concerns with the accuracy of his 

time and attendance reporting based upon a larger agency

investigation concerning the conduct of multiple officers.” 

J.A. 10. The letter also stated that “[a]ny future discrepancy in [Mr. King’s] time and attendance records or entries . . . [would] subject [him] to disciplinary action.” J.A. 

271.

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KING v. ARMY 5

On January 6, 2021, Mr. King was permanently decertified from the IRP based on the agency’s determination 

that he did “not possess the ‘character, trustworthiness, 

and fitness [that] are consistent with the high standards 

expected of law enforcement and security professionals.’”

J.A. 71 (Decertification Memorandum) (quoting AR 190-56, 

¶ 3-3.b) (alteration in original). The determination was 

based on documentation including, but not limited to, 

Mr. King’s employment record, previous written counseling for conduct related issues, and “information developed 

as part of an investigation into [his] misuse of government 

property and failure to properly account for [his] time in

official duty records on or about 15 October 2020.” Id.

That same day, based on the evidence collected during 

the investigation, the agency issued Mr. King a Notification of Proposed Removal based on three charges: (1) Conduct Unbecoming a Law Enforcement Officer (Misuse of 

Government Property); (2) Lack of Candor; and (3) Failure 

to Maintain a Condition of Employment (Decertification 

under the IRP). J.A. 52–62. The Notice laid out the specific 

details relied on to establish the three charges, as well as 

the “aggravating and mitigating Douglas Factors” that 

were considered in deciding Mr. King’s ultimate penalty. 

J.A. 53–56; see Douglas v. Veterans Admin., 5 M.S.P.R. 280, 

305–06 (1981). Enclosed along with the Notice were the relevant witness statements, Mr. King’s official duty log entries, and the IRP Decertification Memo. J.A. 62. The 

Notice also apprised Mr. King of his “right to respond” and 

“furnish affidavits, and other documentary evidence in 

support of [his] response,” and clarified that no removal decision had been made, or would be made, until after the 

time Mr. King was given to respond. J.A. 56–57. At the conclusion of the Notice, Mr. King was informed of his right to 

appeal any final appealable decisions to the MSPB and provided with the necessary details to obtain an appeal. J.A. 

57–61 (listing the four different appeal options available, 

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6 KING v. ARMY

but noting that only one option can be selected, and the selection would be binding). 

Mr. King, through a union representative, responded 

to the Notice in writing on January 11, 2021. In his response, Mr. King contested the allegations against him, the 

adequacy of the agency’s investigation, and the appropriateness of his proposed removal. J.A. 72–75. On February 

10, 2021, after considering his response, the agency sustained the three charges against Mr. King and removed 

him from his position, effective February 12, 2021 (the Removal Decision). J.A. 63–70. Similar to the earlier Notice, 

the Removal Decision again provided Mr. King with the 

specifications for the three charges against him, the relevant Douglas factors supporting his removal, and his appeal options. Id.

C 

On March 9, 2021, Mr. King appealed the agency’s Removal Decision to the MSPB and a hearing was held on 

June 22, 2021. On June 28, 2021, the administrative judge 

assigned to the appeal issued an initial decision, sustaining 

the agency’s charges, denying Mr. King’s affirmative defenses, and sustaining the agency’s decision to remove 

Mr. King from his position. The administrative judge determined that the agency had proven all three of its 

charges by a preponderance of the evidence, and that the 

agency had proven by a preponderance of the evidence that 

Mr. King’s “penalty of removal promotes the efficiency of 

service.” J.A. 18–23. The administrative judge further determined that Mr. King had failed to prove all three of his 

affirmative defenses. J.A. 24–29. Finally, the administrative judge reviewed the agency’s consideration and application of the Douglas factors, and concluded that 

Mr. King’s removal did not exceed the bounds of reasonableness. J.A. 29–31. 

On September 1, 2021, Mr. King petitioned the Board 

for review of the administrative judge’s initial decision. 

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KING v. ARMY 7

Mr. King argued that the administrative judge erred in 

sustaining the three misconduct charges, erred in finding 

that he did not establish his affirmative defenses (harmful 

error, equal employment opportunity retaliation, and disability discrimination/disparate treatment), and erred in 

finding that the penalty of removal was within the bounds 

of reasonableness. Upon reviewing the petition filings, the 

Board concluded that Mr. King had not established any basis for which it should grant the petition for review and denied the petition. J.A. 2; see also 5 C.F.R. § 1201.115 

(“Criteria for granting petition or cross petition for review.”). On June 28, 2022, the Board issued a final order 

affirming the administrative judge’s initial decision, but 

expressly modifying it “to address [Mr. King’s] disparate 

penalty claim.” J.A. 2 (hereinafter, the Board’s decision). 

Mr. King timely filed this petition for review on August 

25, 2022, within 60 days of the Board’s final decision. See 5 

U.S.C. § 7703(b)(1)(A). This court has jurisdiction pursuant 

to 28 U.S.C. § 1295(a)(9).2 

II

This court must affirm a Board’s decision unless it is 

“(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 (3) unsupported by substantial evidence.” See

5 U.S.C. § 7703(c). We review the Board’s legal determinations, such as statutory interpretations, de novo and its 

2 Although Mr. King asserted an affirmative defense 

based on equal employment retaliation—which would otherwise preclude us from having jurisdiction—he has abandoned those claims on appeal, thus providing this court 

with jurisdiction. ECF No. 4, at 1–3; Harris v. Sec. & Exch. 

Comm’n, 972 F.3d 1307, 1318 (Fed. Cir. 2020).

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8 KING v. ARMY

findings of fact for substantial evidence. Archuleta v. Hopper, 786 F.3d 1340, 1346 (Fed. Cir. 2015).

A decision is supported by substantial evidence when 

there is relevant evidence that “a reasonable mind might 

accept as adequate to support a conclusion.” McLaughlin v. 

Off. of Pers. Mgmt., 353 F.3d 1363, 1369 (Fed. Cir. 2004) 

(cleaned up). The burden of establishing reversible error in 

the Board’s decision rests with the petitioner. Harris v. 

Dep’t of Veterans Affs., 142 F.3d 1463, 1467 (Fed. Cir. 

1998). 

III

Mr. King presents three specific arguments on appeal. 

We discuss each in turn. First, Mr. King argues that he was 

unconstitutionally removed without due process, in violation of the Fifth Amendment Due Process Clause. Second, 

Mr. King contends that the Board erred in finding that the 

agency met its burden of proof to sustain the first two 

charges against him. And third, Mr. King asserts that the 

Board failed to properly assess the reasonableness of his 

removal. For the reasons stated below, we reject all three 

of Mr. King’s arguments.

A 

As a federal employee as defined by 5 U.S.C.

§ 7511(a)(1), Mr. King has a constitutionally-protected 

“property right in his continued employment” with the federal government. King v. Alston, 75 F.3d 657, 661 (Fed. Cir. 

1996). Therefore, in an adverse action for removal, 

Mr. King is entitled to the procedural due process protections provided in § 7513 of title 5. See also 5 U.S.C. 

§ 7512(1) (listing “removal” as an action covered by the 

statute). Such due process protections “include written notice of the specific reasons for the proposed action, an opportunity to respond to the charges, and the requirement 

that the agency’s action is taken to promote the efficiency 

of the service.” Kaplan v. Conyers, 733 F.3d 1148, 1154 

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KING v. ARMY 9

(Fed. Cir. 2013). Additionally, Mr. King has the right to appeal his for-cause removal to the Board. Id. (citing 

§ 7513(d)). And on appeal, the Board is statutorily mandated to determine whether the agency’s decision was supported by a preponderance of the evidence. Id. (citing 5 

U.S.C. § 7701(c)(1)(B)). 

Mr. King alleges that he was removed from his service, 

and thus “deprived . . . of his interest in continued employment” without proper due process. Pet. Br. at 10. We find 

no basis for this allegation. The record establishes that he 

was given written notice of the charges against him and the 

opportunity to respond. And the Board found his removal 

supported the efficiency of the service. Nothing more is required.

Mr. King’s property interest was in his employment as 

a DACP, not in his IRP certification. See Dep’t of Navy v. 

Egan, 484 U.S. 518, 528 (1988) (holding that an employee 

does not have a right to a security clearance). Additionally, 

unlike removal, IRP decertification is not a reviewable “adverse action” under § 7512 nor subject to the procedural requirements of § 7513. As such, Board review of the agency’s 

IRP decision was only available upon the agency’s adverse 

removal action. In light of the aforementioned notice, opportunity, and review procedures afforded to Mr. King, 

there is no question that he received proper due process 

protections related to his removal. Therefore, we reject 

Mr. King’s unsupported argument that he was deprived of 

due process under the Fifth Amendment, and find that the 

Board did not err in sustaining the agency’s third charge of 

failure to maintain a condition of employment.

B 

To sustain the first charge against Mr. King for conduct unbecoming a law enforcement officer (misuse of government property), the Board was required to conclude

that the agency had shown by a preponderance of the evidence “(1) that [Mr. King] used (or removed or possessed) 

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10 KING v. ARMY

government property; and (2) the use (or removal or possession) was without permission.” J.A. 11 (citing Castro v. 

Dep’t of Def., 39 M.S.P.R. 555 (1989)). To sustain the second 

charge against Mr. King for lack of candor, the Board was 

required to conclude that the agency had shown by a preponderance of the evidence “(1) that [Mr. King] made statements which were less than candid, truthful, accurate, or 

complete, involving deception; and (2) such statements 

were knowingly made or withheld.” J.A. 11 (citing Rhee v. 

Dep’t of Treasury, 117 M.S.P.R. 640 (2012)).

Again, the record establishes that the agency has met 

its burden of proof under both charges. The Board affirmed 

the first charge against Mr. King after finding that the 

agency “presented clear and undisputed evidence that” 

DACP officers “were not authorized to wear their official 

uniforms, badges, or service weapons outside of Fort [Eisenhower] except in special circumstances not presented by 

the facts of this appeal.” J.A. 18. The Board further found 

that the agency had established that Mr. King had violated 

this long-standing policy when he “used his government vehicle to drive at least ten miles” to the off-post restaurant

while “in his full uniform.” J.A. 20. 

The evidence used to support the Board’s finding as to 

the agency’s first charge (misuse of government property),

was also used to support its finding as to the agency’s second charge (lack of candor). Because Mr. King’s official 

duty log for October 15, 2020, placed him on post at the 

same time he was found to have been dining at the off-post

restaurant, the Board subsequently determined that the 

agency had shown by a preponderance of the evidence that 

there was a “significant and deceptive omission from 

[Mr. King’s] official duty log.” J.A. 21.

Mr. King’s main challenge to the Board’s finding is that 

the DACP uniform policy is “poorly drafted,” Pet. Br. at 19,

and that his stop at the off-post restaurant was “authorized” because, according to Mr. King, it occurred on October 

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KING v. ARMY 11

9 while enroute to a training area,3 and not on October 15 

as testified to by the waitress, Ms. Dulce Barajas, that 

served Mr. King during her October 15 shift, and two other 

witnessing officers, id. at 22. But we review the Board’s 

findings for substantial evidence. The Board acknowledged 

“[t]he diverging testimony about when exactly [Mr. King] 

went to” the alleged restaurant, yet after “making credibility findings” as to each of the four witness’ testimonies, including Mr. Kings’, the Board concluded that it was “likely” 

and “far more credible” that the incident occurred on October 15. J.A. 16–18. Additionally, the Board explicitly noted 

that Mr. King’s hearing testimony about when he stopped 

at the restaurant “was flatly inconsistent with his own official duty log entry for October 9.” J.A. 18.

Because a reasonable mind could accept the testimonies of Ms. Barajas’ and the other witnessing officers as adequate to support the conclusion that Mr. King used his 

government vehicle to drive to the off-post restaurant while

on duty and wearing his official uniform and badge on October 15, we find that substantial evidence supports the 

Board’s findings as to the first charge of misuse of government property. Additionally, because Mr. King’s official 

duty log for October 15, 2020, clearly omits any details 

3 Despite claiming that he stopped at the alleged restaurant on October 9, 2020, Mr. King’s official duty log for 

that day contains no record of any such stop. Mr. King alleges that, just after beginning his shift, and while on his 

way to a training area, he stopped at the off-post restaurant to use the restroom and get some food after leaving 

post. Pet. Br. at 3. Yet Mr. King’s official duty log shows 

that he traveled from post to the training area at least 10 

miles away, in 14 minutes. J.A. 83. Thus, even under 

Mr. King’s own version of events, he nevertheless intentionally omitted his stop at the off-post restaurant from his 

official duty log. 

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12 KING v. ARMY

indicating that he left the post while on duty that day, substantial evidence also supports the Board’s decision as to 

the second charge of lack of candor.

C 

The Board is required to review an agency decision to 

determine whether “the agency-imposed penalty is clearly 

excessive, disproportionate to the sustained charges, or arbitrary, capricious, or unreasonable.” Douglas, 5 M.S.P.R. 

at 284. But the Board’s function is not to displace the 

agency’s management responsibility; rather, it is to assure 

that the agency has properly exercised its managerial judgment within “tolerable limits of reasonableness.” Id. at 302. 

Thus, the Board must give due weight to the agency’s primary discretion in exercising the managerial function of 

maintaining employee discipline and efficiency. Id. Further, there are twelve articulated factors that agencies are 

expected to consider when determining the appropriateness of a particular penalty. Id. at 305–06 (listing non-exhaustive Douglas factors). “Only if the Board finds that the 

agency failed to weigh the relevant factors, or that the 

agency’s judgment clearly exceeded the limits of reasonableness, is it appropriate for the Board then to specify how 

the agency’s decision should be corrected to bring the penalty within the parameters of reasonableness.” Id. at 306

(emphasis added). 

Here, the Board reviewed the agency’s “detailed [removal] decision letter explaining” the specific Douglas factors, both mitigating and aggravating, considered when 

determining the appropriate penalty for Mr. King. J.A. 30;

see also J.A. 64–65. The Board also heard further testimony 

from the deciding officer discussing the specific weight 

given to each relevant factor. Then, after “carefully consider[ing] the agency’s penalty analysis,” the Board determined that “[o]n the whole,” there was no basis to overturn 

the agency’s decision to remove Mr. King from his position. 

J.A. 31.

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KING v. ARMY 13

Mr. King alleges that the Board failed to properly assess the reasonableness of his penalty because it “took the 

[a]gency’s word at face-value” “[r]ather than properly reviewing the record.” Pet. Br. at 23. We disagree.

After sustaining all three of the agency’s charges, the 

Board properly assessed the agency’s consideration of the 

relevant Douglas factors and the weight given to each, and

determined that in light of the “seriousness of the offense 

for a law enforcement officer,” and Mr. King’s lack of 

“acknowledgement or remorse for such conduct,” the penalty of removal was within the bounds of reasonableness. 

J.A. 31. The Board also found that because the nature of 

Mr. King’s conduct “involved leaving his assigned duty station to purchase dinner off post and in his full uniform 

while providing false information in his official duty log 

about his whereabouts,” there was clear evidence that his 

removal promotes the efficiency of service. J.A. 23. Because 

there is substantial evidence that Mr. King used his government vehicle to leave his post, while on duty and without permission, to make a prohibited stop at an 

unauthorized off-post restaurant while wearing his official 

uniform “including his badge and gun,” and was not truthful about his whereabouts, J.A. 31, the Board did not err in 

concluding that removing Mr. King from his position as a 

law enforcement officer was not unreasonable.

IV

Because the Board’s decision was supported by substantial evidence, and his removal was not unreasonable,

we affirm.

AFFIRMED

COSTS

No costs. 

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