                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-3730
                                   ___________

Eileen Miller,                           *
                                         *
             Plaintiff - Appellant,      *
                                         * Appeal from the United States
      v.                                 * District Court for the Eastern
                                         * District of Missouri.
United States Department of              *
Agriculture,                             *      [UNPUBLISHED]
                                         *
             Defendant - Appellee.       *
                                    ___________

                             Submitted: May 16, 2007
                                 Filed: August 3, 2007
                                  ___________

Before WOLLMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges.
                          ___________

PER CURIAM.

       Eileen Miller appeals the district court’s1 grant of summary judgment upholding
her dismissal from her job with the Knox County, Missouri, Farm Service
Administration (FSA). Miller was dismissed after corn she was charged with keeping
as collateral on a Farm Service loan was used for other purposes, leading to a default
on a corn loan and bankruptcy. We affirm.



      1
       The Honorable Mary Ann L. Medler, United States Magistrate Judge for the
Eastern District of Missouri.
                                          I.

      The Knox County FSA employed Miller as a Program Assistant/Program
Technician beginning in April 1986.2 In 2003, Miller and her husband had two FSA
corn loans outstanding. An inspection at their farm in May 2003 revealed that the
52,092 bushels of corn that was supposed to be securing both loans had gone missing
from the designated grain bins on their farm. The discovery caused a debt of
$94,017.56 to become due immediately. Miller and her husband filed for bankruptcy
on June 27, 2003, and named the FSA as a secured creditor.

         In an April 19, 2004, letter, Knox County FSA Executive Director Mark March
suspended Miller without pay pending removal from her job for “[u]nauthorized
removal and disposal of Commodity Credit Corporation [CCC] mortgaged collateral.”
The notice stated: “Both as a signatory and as an experienced FSA employee, you
knew or should have known that you were responsible for the resulting lien on the
aforementioned crop, for knowing the whereabouts and condition of the crop, and for
preventing and/or reporting any unauthorized disposal/attempted disposal of said crop
. . . . The offense with which you are charged casts grave doubt on your reliability,
trustworthiness and integrity.”

        Under the informal appeals process outlined in 7 C.F.R. § 7.30, Miller appealed
her suspension to the Knox County FSA and the Missouri State FSA Committee, both
of which upheld it. On August 24, 2004, Miller’s attorney filed a written appeal with
FSA Deputy Director for Field Operations Douglass W. Frago. The appeal included
letters of support, Miller’s work plan, transcripts of the Missouri State Committee’s
hearing, and affidavits. One affidavit from Miller’s husband denied Miller was part
of the grain removal and disposition, said she had no contemporaneous knowledge


      2
      The United States Department of Agriculture (USDA), the appellee here,
administers the FSA through local committees. 16 U.S.C. § 590h(b).

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about it, said he told Director March about the situation in May 2003, and said he only
told Miller about the grain after speaking with March.

      On September 3, 2004, Frago contacted Miller’s attorney and confirmed that
Miller requested a review and that she did not wish to have a hearing. Frago stated
he would make a decision based on the written record, and would refer the appeal to
personnel officer Judith Herzog. In an October 18, 2004, memorandum, Herzog
reported back:

      As to Appellant’s argument that the acts charged to her were not
      misconduct, said conduct was, under any definition of law, theft, and
      also carries the implication of fraud or conspiracy to commit fraud.
      Property, in this case, grain, on which the FSA had a legal lien, was
      taken without the knowledge or permission of FSA. Further, the taking
      of that property was prohibited by the [CCC] grain loan contracts, which
      granted Appellant and her husband large USDA/Federal agriculture
      loans based on the grain as security. There is no question that the
      conduct charged to Appellant was correctly labeled as “misconduct.”

      As to the responsibility for the misconduct, Appellant was co-owner,
      with her husband, both of the CCC grain (hereafter referred to as
      “grain”) and of the property on which the grain was stored. In addition,
      Appellant was co-signer, with her husband, on the CCC loans which the
      grain secured. These are facts verified by the ownership and loan
      documents, and are not in dispute. Appellant’s name is literally written
      all over the grain, the storage property, and the loans. Appellant cannot
      dismiss her responsibilities for the grain as security for the loans at issue.
      Whether she actually participated in the removal of the grain, or even
      knew of it, is irrelevant. She was legally and ethically responsible for the
      security and whereabouts of that grain, and made herself so by
      co-signing the loan documents. In fact, that is one of the purposes, and
      results, of having a co-signer on a loan, to spread the responsibility for
      the security of liens and repayment of the loan. Again, whether she knew
      of that responsibility, or not, is irrelevant. . . . What is relevant is that
      there was an admission by one co-signer/co-owner of an unauthorized

                                           -3-
      removal of the grain and that it was Appellant’s responsibility to know
      . . . the status of the grain. . . . Appellant . . . is a perpetrator, responsible
      for her own conduct and for the responsibility of knowing, or choosing
      ignorance of, the status of the CCC grain . . . .

      What agency has charged, . . ., is the fact that the collateral didn’t just
      “fail,” it was removed without authorization from Agency, and it was an
      FSA employee and technical expert for that program, that is, Appellant,
      whose grain, loan, and responsibility it was. That is, in fact, the nexus
      required for removal of an employee . . . .

      The memorandum cited two nexuses between Miller’s conduct and its adverse
impact on performance of her duties. First, in similar off-duty conduct cases
involving unauthorized use, disposal, or theft of government or government-controlled
property, “the nexus was that the trustworthiness and credibility of the employee was
essential to the job, and was destroyed or rendered doubtful, as in Appellant’s case.”

      Second, Miller’s duties included “identifying to management other producers
and loan recipients, signers and co-signers, who may have committed the same acts
as Appellant and her husband.” Since Miller was also responsible for deciding the
appropriate consequences for these acts, “[n]either agency nor the parties to those
loans can now have confidence in Appellant’s integrity or impartiality in that
function.” Herzog’s decision was based, in part, on affidavits from Miller’s line of
supervisors.3

      Miller filed a reply to Herzog’s memorandum on November 4, 2004. She
objected to her supervisors’ affidavits because she exercised her option to appeal




      3
        Though Herzog found Miller’s actual knowledge of the grain removal
irrelevant to holding her responsible for it, she also noted there was no reason in the
record to believe Miller was actually unaware of it.

                                             -4-
based on the existing record. She argued these new affidavits were an “attempt to add
new evidence to the record that was not considered by the State committee.”4

      Frago released his decision on March 10, 2005. It read:

      I have reviewed the entire record and have discussed this matter with Mr.
      Chott [his assistant] who has recommended that the decision of the
      Missouri State FSA Committee be sustained. I concur. The
      preponderance of the evidence shows that your client knew or should
      have known about the unauthorized removal and disposal of Commodity
      Credit Corporation mortgaged collateral. There is also a nexus between
      her assigned programs in the Knox County FSA Office and the charged
      offense. Finally, the penalty of removal is not arbitrary, capricious or
      unreasonable.

      On January 19, 2006, Miller filed a petition for review in federal court alleging
due-process violations. On September 19, 2006, the district court granted the USDA’s
motion for summary judgment. This appeal followed.

                                          II.

      We review an agency’s actions to determine whether they were arbitrary or
capricious, 5 U.S.C. § 706(2)(A), and we review the district court’s decision de novo.
United States v. Massey, 380 F.3d 437, 440 (8th Cir. 2004).

      The law requires the USDA to rely on facts supported by “substantial evidence”
in the record. 5 U.S.C. § 706(2)(E). “That phrase does not mean a large or
considerable amount of evidence, but rather such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487


      4
       We note Miller supplemented the record herself when she appealed to Frago,
adding letters of support, affidavits, work plans and hearing transcripts.

                                         -5-
U.S. 552, 564-65 (1988) (quotation omitted). “A reasonable decision is one supported
by substantial evidence, which is more than a scintilla but less than a preponderance.”
Hillery v. Metro. Life Ins. Co., 453 F.3d 1087, 1090 (8th Cir. 2006).

      “Whether an agency’s action is arbitrary and capricious depends on whether the
agency has offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a difference in
view or the product of agency expertise.” Friends of Boundary Waters Wilderness v.
Dombeck, 164 F.3d 1115, 1121 (8th Cir. 1999) (internal quotation omitted) (quoting
Mausolf v. Babbitt, 125 F.3d 661, 669 (8th Cir. 1997)).

      “We are to make a searching inquiry into the facts, examining the full
administrative record, but we do not substitute our judgment for that of the agency,
even if the evidence would have also supported the opposite conclusion. We ask
whether the agency articulated a rational connection between the facts found and the
choice made.” South Dakota v. United States Dep’t of Interior, 423 F.3d 790, 799
(8th Cir. 2005) (internal citations and quotations omitted). If the agency’s
determination is supportable on any rational basis, we must uphold it. Voyageurs
Nat’l Park Ass’n v. Norton, 381 F.3d 759, 763 (8th Cir. 2004).

                                          III.

       Much of Miller’s opening brief centered on the violation of her due-process
rights through the USDA’s failure to comply with the stringent requirements of
Section 554 of the Administrative Procedures Act (5 U.S.C. § 554). And indeed, the
agency did not comply with those procedures. But it points out, correctly, that it did
not have to – Section 554 of the APA does not apply to personnel matters:




                                          -6-
      This section applies, . . ., in every case of adjudication required by statute
      to be determined on the record . . ., except to the extent that there is
      involved – . . . the selection or tenure of an employee . . . .

5 U.S.C. § 554(a)(2).

      Miller’s complaints of violations of conflict of roles and ex parte testimony
rules were based on the mistaken application of 5 U.S.C. § 554 to this personnel
matter, and she has argued no other basis in law to support them.

      Miller’s employment was authorized by the Soil Conservation and Domestic
Allotment Act, Pub. L. No. 46, 49 Stat. 1148 (1935) (codified as amended at 16
U.S.C. § 590(h)(b)); she served at the pleasure of the agency. See 7 C.F.R. §
7.25(b)(1); Buchholz v. Aldaya, 210 F.3d 862, 864 (8th Cir. 2000). Miller was not
covered by any civil service statutes, including the Civil Service Reform Act. Id. at
867. She had no protected interest in her employment, and, therefore, no due-process
claim based on such an interest. Id. at 864; see also Massey, 380 F.3d at 441.

      Though section 554 of the APA offers Miller no protection in this matter,
USDA regulations do, particularly 7 C.F.R. §§ 7.30 and 7.31, which prescribe appeals
procedures. Because Miller did not request a formal hearing under 7 C.F.R. § 7.31,
her appeal proceeded under the procedures outlined in 7 C.F.R. § 7.30. This section
gave her the right to appeal informally to the County Committee, the State Committee,
and to the Deputy Administrator, and she did so.

      However, 7 C.F.R. § 7.30 did not give Miller the right to cross-examine
witnesses or any of the other usual procedural protections of a formal appeal process
she now asks for. Miller admits she specifically and expressly declined a formal
appeal hearing. She is simply not now entitled to have formal rules applied.




                                           -7-
      Once we scrub Miller’s suit of her mistaken claims to APA-style procedural
process, all that remains is her assertions that her termination was arbitrary and
capricious and was not supported by substantial evidence.

       Our inquiry in matters such as this is narrow. We review the USDA’s ultimate
decision and the facts it used in that decision, not the process by which it arrived at
that decision, or other facts surrounding the matter.

       Miller argues her due-process rights were implicated when the USDA charged
her with dishonesty. The April 19, 2004, letter from March initially suspending Miller
stated, “The offense with which you are charged casts grave doubt on your reliability,
trustworthiness and integrity.” Miller argues the implication of fraud requires the
USDA to give Miller a “trial-type” hearing, citing, in her reply brief, Board of Regents
of State Colleges v. Roth, 408 U.S. 564 (1972). But Roth holds only that where “a
person’s good name, reputation, honor, or integrity is at stake because of what the
government is doing to him, notice and an opportunity to be heard are essential.” Id.
at 573 (citation omitted).

       The Roth factors are not at issue here. The agency did not publicly accuse
Miller of anything, and ended up firing her simply for what it decided she knew or
should have known. Even if the Roth factors were present here, Miller was given
ample notice and an opportunity to be heard. She waived her right to a formal hearing
and proceeded on a more informal route through multiple levels of review. She was
notified of the reasons for her suspension and eventual firing, she was notified of her
right to appeal, and she took full advantage of that right.

      Miller alleges Frago’s decision was based on information not in the original
record that she had no opportunity to challenge. But the March 10, 2005, letter from
Frago that ended Miller’s employment does not appear to rely on any such
information.

                                          -8-
      In the end, Frago simply concluded Miller should be removed because she
knew or should have known about the removal of the grain collateral, and that there
was a connection between the grain removal and Miller’s duties at the Knox County
FSA Office. Both facts are supported by substantial evidence in the record, and are
not counter to the evidence before the agency.

      Miller handled grain loans for the agency. As a co-signer on the grain loan, she
was responsible for its disposition. The determination that Miller “knew or should
have known” of its removal does not equate with actual knowledge – but rather only
constructive knowledge. The latter is all that is required for a termination that is
neither arbitrary nor capricious.

                                         IV.

      The district court found the agency followed the applicable regulations and
necessary procedural requirements and made a rational decision to suspend and
remove Miller based on relevant factors. The district court held that the agency’s
decision was based on substantial evidence, and that Miller's suspension and removal
was not arbitrary or capricious. These conclusions are fully supported by the record.
Miller received the due process for which she asked and to which she was entitled.
We affirm.
                        ______________________________




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