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Earley v. Department of Treasury

Decided: September 11, 1990.

CHARLES W. EARLEY, PETITIONER,
v.
DEPARTMENT OF TREASURY, RESPONDENT



Appeal from the Merit Systems Protection Board.

Plager, Circuit Judge, Friedman, Senior Circuit Judge, and Lourie, Circuit Judge.

Per Curiam

DECISION

This is an appeal from a decision of the Merit Systems Protection Board (Board) sustaining the Internal Revenue Service's (IRS) removal of petitioner Charles W. Earley for theft of government property. We affirm.

The scope of review of Board decisions is limited by statute. We must affirm the decision of the Board unless it is arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, obtained without procedures required by law, or unsupported by substantial evidence. 5 U.S.C. § 7703 (c) (1988). Under this standard of review, we do not overturn an agency decision if it is supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consol. Edison Co. v. Nat'l Labor Relations Bd., 305 U.S. 197, 229 (1938).

In a thoroughly prepared initial decision by the Administrative Judge, made final by the Board in its order of March 22, 1990, the Board concluded that petitioner had appropriated several boxes of computer paper and had delivered some of these boxes to the residence of a co-worker. Petitioner asserts, inter alia, that he removed the paper with the permission of his former supervisor, Larry Milligan. Mr. Milligan, having died, is unavailable to substantiate petitioner's assertion. Other evidence considered by the Board indicates that the paper was removed without permission.

While there is conflicting testimony, we conclude that substantial evidence exists to support the Board's decision. The decision is not arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, obtained without procedures required by law, or unsupported by substantial evidence.

19900911

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