824 F. 2d 978 - Withers v. Department of Air Force

824 F2d 978 Withers v. Department of Air Force

824 F.2d 978

Larry L. WITHERS, Petitioner,
v.
DEPARTMENT OF the AIR FORCE, Respondent.

Appeal No. 87-3030.

United States Court of Appeals, Federal Circuit.

May 12, 1987.

Unpublished disposition
NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

Before MARKEY, Chief Judge, and DAVIS and NEWMAN, Circuit Judges.

PER CURIAM.

DECISION

1

The decision of the Merit Systems Protection Board, sustaining the removal of Larry L. Withers by the Department of the Air Force, is affirmed.

2

Removal of Mr. Withers on the basis of his conviction of mail fraud against the United States was not barred because the Air Force knew of this conviction at the time it reinstated Mr. Withers following this court's decision in Withers v. Department of the Air Force, 746 F.2d 1489 (Fed.Cir.1984) (text unpublished), wherein we reversed the Board's dismissal and remanded for consideration of Mr. Withers' asserted partial recovery.

3

The elements of laches have not been shown. Nor is reprisal made out prima facie by a prior successful action against the agency. There is no evidence before us to support Mr. Withers' assertion that the adverse action was taken in reprisal for any protected activity. In this case the reason of record is sufficient to support the action of removal, and the requisite nexus with the efficiency of the service has been shown.