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. 

05-3073 3