Morris C. Brocks v. Department of the Army

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
04-3262
MORRIS C. BROCKS,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
__________________________
DECIDED: May 6, 2005
__________________________
Before RADER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and PROST, Circuit
Judge.
PER CURIAM.
Morris C. Brocks (“Brocks”) petitions for review of a decision by the Merit
Systems Protection Board (“Board”) affirming his removal by the Department of the
Army (“Army”) due to his misuse of a government credit card. Brocks v. Dep’t of the
Army, No. DC0752030736-I-1 (M.S.P.B. Oct. 30, 2003). We affirm.
I. BACKGROUND
Brocks was a Lead Orthopedic Technician, a civilian employee, with the Army.
On July 5, 2001, he signed an agreement to the terms and conditions of using the
government credit card, including that he was to use it for official government business
only and not for personal, family, or household purposes. However, on fourteen

-- 1 of 4 --

different occasions between July 25, 2001 and November 1, 2001, Brocks made
unauthorized charges totaling $3,119.50 to the government credit card, including cash
advances. On two separate occasions in November 2002 and February 2003, Brocks
received written notice that his government credit card was delinquent and that he must
pay the outstanding balance immediately.
On June 17, 2003, the Army proposed Brocks’s removal from federal service for
misuse of the government credit card, and thereafter, the deciding official of the Army,
finding that misuse of a government credit card for personal gain was a serious offense,
determined that removal was appropriate. In his written determination, the deciding
official considered the twelve Douglas factors, including “consistency of penalty with
other employees’ penalties for similar offenses,” where he found “I am unaware of any
other similar case during my tenure at DeWitt Health Care Network. However, I
understand that the offense of misappropriation of company/agency assets is grounds
for dismissal throughout corporate America.” See Douglas v. Veterans Admin., 5
M.S.P.B. 313 (1981). Brocks was removed from federal service effective July 25, 2003.
At the time of his termination, Brocks had not repaid his unauthorized charges.
Brocks appealed his removal to the Board. On October 30, 2003, the
administrative judge held that the Army had satisfied its burden of proof by a
preponderance of the evidence that the charges against Brocks were proper, the
deciding official considered all the mitigating factors, and the removal was reasonable
for the sustained charges and promoted the efficiency of service. The administrative
judge specifically noted that the deciding official “described his familiarity with the
Douglas factors and explained how he used them in his penalty deliberations.” Brocks
04-3262 2

-- 2 of 4 --

at 4. When the full Board denied Brocks’s petition for review on March 26, 2004, the
initial decision of the administrative judge became the final decision of the Board.
Brocks timely sought review in this court.
We have jurisdiction to review the Board’s decision pursuant to 28 U.S.C.
§ 1295(a)(9).
II. DISCUSSION
A. Standard of Review
We must sustain the 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.” 5 U.S.C. § 7703(c) (2000); Rosete v. Office of Pers. Mgmt.,
48 F.3d 514, 516 (Fed. Cir. 1995).
B. Analysis
On appeal, Brocks focuses on the severity of his penalty, asserting that it was his
first offense and that the Army had options other than terminating him. Brocks further
argues that the administrative judge improperly failed to consider that another employee
received a lesser penalty for misuse of a government credit card, claiming: “The fact is
the one other person Ms. Nino [sic] situation is the same. Although she work [sic] in a
different section she still works under the Hospital Commander. Whether you are in
Alpha Company or Bravo Company punishment of the first offense should be the
same.” Brocks asks this court to reduce the punishment and return him to his position
in the federal service.
04-3262 3

-- 3 of 4 --

The Army responds that Ms. Nino was not a similarly situated employee,
because she was in a different division with a different chain of command, and because
she repaid the unauthorized charges on her government-issued credit card. We agree,
noting that the administrative judge found that the deciding official considered all the
Douglas factors, including “consistency of the penalty with those imposed upon other
employees for the same or similar offenses,” Douglas, 5 M.S.P.B. at 13, and that “the
penalty of the removal is reasonable and promotes the efficiency of service.” Brocks at
6. We conclude that Brocks’s arguments do not provide a sufficient basis to overturn
the Board’s decision, and we therefore affirm.
04-3262 4

-- 4 of 4 --