Unpublished Dispositionlarry L. Withers, Petitioner, v. Department of the Air Force, Respondent, 824 F.2d 978 (Fed. Cir. 1987)

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US Court of Appeals for the Federal Circuit - 824 F.2d 978 (Fed. Cir. 1987) May 12, 1987

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



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

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 Cir. 1984) (text unpublished), wherein we reversed the Board's dismissal and remanded for consideration of Mr.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.

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.