                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DERRICK L. SCOTT,                               DOCKET NUMBER
                   Appellant,                        SF-0752-13-0345-I-1

                  v.

     DEPARTMENT OF AGRICULTURE,                      DATE: September 10, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Derrick L. Scott, Lexington, Mississippi, pro se.

           Shelley B. Mund, Esquire, Albuquerque, New Mexico, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     upheld his removal for lack of candor. Generally, we grant petitions such as this
     one only when: the initial decision contains erroneous findings of material fact;
     the initial decision is based on an erroneous interpretation of statute or regulation


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                                 2

     or the erroneous application of the law to the facts of the case; the judge’s rulings
     during either the course of the appeal or the initial decision were not consistent
     with required procedures or involved an abuse of discretion, and the resulting
     error affected the outcome of the case; or new and material evidence or legal
     argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review and AFFIRM
     the initial decision, which is now the Board’s final decision.                   5 C.F.R.
     § 1201.113(b).
¶2           The agency converted the appellant to a career-conditional position as a
     Law Enforcement Officer on February 27, 2011. Initial Appeal File (IAF), Tab 4
     at 10-11. Prior to this conversion, the appellant had a brief period of seasonal
     employment with the agency.          Id. at 31-32.    On June 28, 2012, the appellant
     completed a Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
     Form 4473 while purchasing a firearm in Oregon. 2 Id. at 43-45. In doing so, the
     appellant certified that he was the “actual buyer,” i.e. he was not acquiring the
     firearm on behalf of another person. Id. at 43-44, 57-58. The appellant later
     acknowledged that he, in fact, had acquired the firearm on behalf of another
     person. See, e.g., id. at 27, 48-50. According to the appellant, he purchased the
     firearm for a friend and agency Student Career Experience Program (SCEP)
     participant (S.J.) because she could not purchase the firearm herself as a Florida
     resident. Id. at 48-49. The appellant met S.J. through the SCEP, and she was still
     an active participant at the time of the firearm purchase. Id. at 48, 52-53.



     2
         The form is titled: Firearms Transaction Record Part I – Over-the-Counter. Id. at 43.
                                                                                             3

¶3         The agency’s Office of Inspector General (OIG) learned of the purchase and
     conducted an investigation. See id. at 40-42. The OIG interviewed the relevant
     parties before concluding that the appellant had violated federal law by making a
     false statement 3 on ATF Form 4473. Id. at 41-42 (citing 18 U.S.C. § 922(a)(6) (it
     is unlawful for any person to knowingly make a false statement in connection
     with the acquisition of a firearm from a licensed dealer if that statement is
     intended or likely to deceive the dealer with respect to the lawfulness of the
     sale)).
¶4         On November 30, 2012, the agency placed the appellant on administrative
     leave, charged him with lack of candor, and proposed his removal. Id. at 28-29,
     36. The appellant responded to the proposal verbally and in writing. See id.
     at 16, 25-27.     After considering those responses, the agency removed the
     appellant, effective March 6, 2013. Id. at 15-17.
¶5         The appellant appealed his removal to the Board, alleging that he had made
     a mistake but that his actions did not demonstrate a lack of candor. IAF, Tab 1
     at 3. He also alleged that the agency’s penalty was beyond the tolerable limits of
     reasonableness. Id.
¶6         After conducting a hearing, the administrative judge affirmed the
     appellant’s removal. IAF, Tab 31, Initial Decision (ID). The appellant has filed a
     petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed
     a response. PFR File, Tab 4. The appellant has replied. 4 PFR File, Tab 8.




     3
       The OIG turned over its findings to a local Assistant United States Attorney, who
     declined to prosecute. Id. at 42.
     4
       Prior to his reply, the appellant requested leave to file additional evidence consisting
     of pictures that were previously unavailable due to difficulties with a cellular device.
     PFR File, Tab 5. However, it appears that the appellant filed this evidence with his
     reply. PFR File, Tab 8 at 7-9. Therefore, there is no need to rule on the appellant’s
     motion.
                                                                                           4

      The agency met its burden of proving the lack of candor charge.

¶7          The appellant argues on petition for review that he made a mistake but did
      not intend any wrongdoing. PFR File, Tab 1 at 2-3. Therefore, according to the
      appellant, the agency did not prove its charge. Id. at 1. The administrative judge
      found otherwise, and we agree.
¶8          Generally, in an adverse action appeal, the agency must prove its charge by
      a preponderance of the evidence. 5 U.S.C. § 7701(c)(1)(B). A preponderance of
      the evidence is that degree of relevant evidence that a reasonable person,
      considering the record as a whole, would accept as sufficient to find that a
      contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
¶9          The administrative judge concluded that the agency met its burden of
      proving by preponderant evidence that the appellant knowingly 5 provided false
      information on ATF Form 4473 and that the information was intended or likely to
      deceive the gun dealer as to a material fact regarding the lawfulness of the sale,
      thereby displaying a lack of candor. ID at 11.
¶10         The appellant disputes the administrative judge’s finding that the
      appellant’s account was implausible, while the gun dealer’s (D.B.) account was
      credible.   PFR File, Tab 1 at 2-3.            However, we find the credibility
      determinations appropriate.    In her decision, the administrative judge properly
      identified the factual questions in dispute, summarized the evidence, stated which
      version she believed, and explained why she found the chosen version of events
      more credible than the other.       ID at 4-11; see Hillen v. Department of the
      Army, 35 M.S.P.R. 453, 458 (1987) (listing those factors to be considered by an
      administrative judge in resolving credibility issues).        The Board must give
      5
        Although the agency charged the appellant with lack of candor, the associated
      specification alleged that he violated federal criminal statutes that require the false
      statements be made “knowingly.”           IAF, Tab 4 at 28 (referencing 18 U.S.C.
      §§ 922(a)(6), 1001(a)). Therefore, the administrative judge required the agency to
      prove that the appellant provided false information knowingly. ID at 7.
                                                                                         5

      deference to an administrative judge’s credibility determinations when they are
      based, explicitly or implicitly, on the observation of the demeanor of witnesses
      testifying at a hearing; the Board may overturn such determinations only when it
      has “sufficiently sound” reasons for doing so.           Haebe v. Department of
      Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Although the appellant disagrees
      with the administrative judge’s conclusions in favor of the agency, his petition
      has provided no reason for the Board to overturn the judge’s credibility
      determinations and substitute its own.
¶11         As the administrative judge observed, ATF Form 4473 unambiguously asks
      if the purchaser is buying a firearm for another individual, warning that, if so, the
      sale cannot be completed.     See IAF, Tab 4 at 57; ID at 8-11.       The appellant
      provided a false response. IAF, Tab 4 at 43.
¶12         When questioned by the OIG, the appellant alleged that he had only
      skimmed the questions on the ATF form. Id. at 50. However, he admitted that he
      knew from personal experience that a nonresident could not purchase a firearm in
      Oregon. Id. at 49-50. The appellant also admitted that, before entering the retail
      store, he and S.J. discussed how S.J. would select the firearm, but the appellant
      would complete the purchase. Id. at 49.
¶13         During his interview with the OIG, the appellant alleged that he relied on
      the statements from a Newport, Oregon deputy in thinking that he could purchase
      the firearm for S.J. as long as he and S.J. completed a bill of sale. Id. However,
      the appellant did not provide any corroborating evidence regarding this purported
      advice. See ID at 9. Moreover, by the time of the OIG investigation, a month
      after the firearm purchase, the appellant had not completed a bill of sale with S.J.
      IAF, Tab 4 at 50.
¶14         Months after the OIG investigation, the appellant had a second opportunity
      to explain his false statement on ATF Form 4473 in response to the agency’s
      removal proposal.    However, in that response, the appellant did not cite any
      misinformation from a local deputy and he did not specifically address the false
                                                                                              6

      statement on his ATF Form 4473.            See id. at 26-27.     Instead, the appellant
      recalled seeing others exchange guns throughout his childhood with nothing more
      than a bill of sale, alleging that he was unaware that his actions were illegal. Id.
      at 27.
¶15            At his hearing, the appellant testified that, while completing the purchase,
      D.B. asked who the firearm was for, and that S.J. answered truthfully. Hearing
      Compact Disk (testimony of appellant). However, the appellant made no such
      claim in his OIG interview or in his written response to the removal proposal.
      Moreover, the gun dealer testified to the contrary. See id. (testimony of D.B.).
      D.B. asserted that he was not aware that S.J. was the “actual buyer,” testifying
      that, if he had known that, he would not have completed the sale. Id.
¶16            In his petition for review, the appellant asserts several reasons for crediting
      his version of events over that of D.B. PFR File, Tab 1 at 2-3, Tab 8 at 3. The
      appellant notes the possible ramifications of his knowingly violating the law in
      suggesting it improbable that his actions were anything other than a mistake and
      also claims he had no profit to gain from the purchase of the gun. PFR File,
      Tab 1 at 3. Claiming that he and D.B. both had a lot to lose by violating the law,
      the appellant suggests his version of events should have been credited as much as
      that of D.B.      Id.   However, in light of the entire record, we find that these
      arguments do not warrant disturbing the administrative judge’s determinations.
      See Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359
      (1987) (declining to grant a petition for review that failed to identify any internal
      inconsistency or        inherent   improbability in    the   factual   findings   of   the
      administrative judge or other basis sufficient to overcome the special deference
      which reviewing bodies must necessarily accord the factual determinations of the
      original trier of fact).
¶17            We are not persuaded by the appellant’s argument that he did not know that
      his purchase plan was unlawful.          See PFR File, Tab 1 at 2-3, Tab 8 at 3.
      Similarly, we are not persuaded by the appellant’s insinuation that he simply
                                                                                            7

      made a mistake in completing ATF Form 4473, given his premeditated purchase
      plan with S.J. See PFR File, Tab 1 at 2-3. Accordingly, we concur with the
      administrative judge’s conclusion that the agency proved its charge.
      A charge of lack of candor is not limited to statements made during an
      administrative investigation.
¶18         The appellant asserts that he was forthcoming throughout the administrative
      inquiry into his false statement on ATF Form 4473 and, therefore, the lack of
      candor charge cannot be sustained.        PFR File, Tab 1 at 1-3, Tab 8 at 3-4.
      According to the appellant, a lack of candor charge is only appropriate when an
      individual is not forthcoming in an administrative investigation. PFR File, Tab 1
      at 1-2. We disagree.
¶19         It is true that the cases the appellant cites involve a lack of candor in an
      administrative investigation.      Id. at 1 (citing Ludlum v. Department of
      Justice, 87 M.S.P.R. 56, ¶ 2 (2000), 6 aff’d, 278 F.3d 1280 (Fed. Cir. 2002); Boyd
      v. Department of Justice, 14 M.S.P.R. 427, 428-29 (1983)). However, those cases
      do not stand for the proposition that a lack of candor charge must relate to
      statements made during an administrative investigation.            Additionally, it is
      well-settled that an agency may take disciplinary action for an employee’s
      off-duty misconduct. Kruger v. Department of Justice, 32 M.S.P.R. 71, 74 (1987)
      (an agency can show a nexus between off-duty misconduct and the efficiency of
      the service by three means: (1) a rebuttable presumption in certain egregious
      circumstances; (2) preponderant evidence that the misconduct adversely affects
      the appellant’s or coworkers’ job performance or the agency’s trust and
      confidence in the appellant’s job performance; or (3) preponderant evidence that
      the misconduct interfered with or adversely affected the agency’s mission); see
      also Harrison v. U.S. Postal Service, 26 M.S.P.R. 37, 38, 40 (1985) (upholding

      6
        In Ludlum, we noted that the proposing official testified that a lack of candor charge
      meant a failure to answer fully and truthfully to questions posed in an administrative
      inquiry. See 87 M.S.P.R. 56, ¶ 2. However, the Board did not adopt this definition to
      limit the potential situations in which an employee may be so charged. See id.
                                                                                          8

      the removal of an employee for submitting false information to the D.C.
      Department of Employment Services in order to receive unemployment benefits);
      Gamble v. U.S. Postal Service, 6 M.S.P.R. 578, 579-82 (1981) (upholding the
      removal of an employee for dishonest conduct in failing to inform the
      Pennsylvania Department of Welfare, from which his wife was receiving benefits,
      that he was employed with the agency).
¶20            As the administrative judge noted, dishonest conduct raises serious doubts
      about an employee’s reliability, veracity, and trustworthiness. ID at 12; see, e.g.,
      Scott v. Department of Justice, 69 M.S.P.R. 211, 240-41 (1995), aff’d, 99 F.3d
      1160 (Fed. Cir. 1996) (Table).       Moreover, as a law enforcement officer, the
      appellant’s misleading statements impaired his ability to testify in trials. 7 ID
      at 12.     Accordingly, the administrative judge concluded that a nexus exists
      between the appellant’s removal for off-duty lack of candor on ATF Form 4473
      and the efficiency of the service. ID at 12. We agree.
      The penalty of removal was within the tolerable limits of reasonableness.

¶21            The appellant acknowledges that some form of disciplinary action was
      warranted, but argues that removal was not a reasonable penalty. PFR File, Tab 1
      at 3, Tab 8 at 4. We disagree.
¶22            In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-07 (1981), the
      Board recognized a number of relevant factors in determining that a penalty is
      within the tolerable bounds of reasonableness. Where, as here, all of the agency’s
      charges are sustained, the Board will review the agency-imposed penalty only to

      7
        Under Giglio v. United States, 405 U.S. 150 (1972), investigative agencies must turn
      over to prosecutors potential impeachment evidence regarding the agents involved in
      the case. See Rodriguez v. Department of Homeland Security, 108 M.S.P.R. 76, ¶ 29
      n.3 (2008), aff’d, 314 F. App’x 318 (Fed. Cir. 2009), overruled on other grounds by
      Thomas v. U.S. Postal Service, 116 M.S.P.R. 453 (2011). The prosecutor then exercises
      his discretion as to whether the impeachment evidence must be turned over to the
      defense. Id. A “Giglio impaired” agent is one against whom there is potential
      impeachment evidence that would render the agent’s testimony of marginal value in a
      case. Id.
                                                                                      9

      determine if the agency considered all the relevant factors and exercised
      management discretion within tolerable limits of reasonableness. See Adam v.
      U.S. Postal Service, 96 M.S.P.R. 492, ¶ 5 (2004), aff’d, 137 F. App’x 352 (2005).
      In doing so, the Board must give due weight to the agency’s primary discretion in
      maintaining employee discipline and efficiency, recognizing that the Board’s
      function is not to displace management’s responsibility but to ensure that
      managerial judgment has been properly exercised. Id. The Board will modify a
      penalty only when it finds that the agency failed to weigh the relevant factors or
      that it clearly exceeded the bounds of reasonableness in determining the penalty.
      Id. It is not the Board’s role to decide what penalty it would impose but, rather,
      whether the penalty selected by the agency exceeds the maximum reasonable
      penalty. Id., ¶ 7.
¶23         In weighing relevant factors, the agency acknowledged that the appellant
      had no history of discipline and that he had met performance expectations. IAF,
      Tab 4 at 19-20, 31-32. However, among other things, the agency also considered
      the nature and seriousness of the offense, the fact that the appellant’s lack of
      candor eroded the trust of his supervisory chain of command, and the fact that his
      actions impaired the usefulness of his testimony as a law enforcement officer in
      future legal proceedings. Id. at 18-20, 30-32.
¶24         The appellant’s argument in favor of mitigating the penalty is premised on
      the assertion that he was forthcoming throughout the agency’s administrative
      investigation. PFR File, Tab 1 at 2-4, Tab 8 at 4-5. However, by discrediting the
      appellant’s version of events and finding that the agency proved its charge, the
      administrative judge determined that the appellant was not forthcoming. See ID
      at 8-11. Moreover, to the extent that the appellant was forthcoming by making
      some admissions during the agency’s investigation, we do not find his decision to
      admit to certain incontrovertible facts, such as the content of the ATF Form 4473
      that he signed, establishes his trustworthiness. Accordingly, we agree with the
                                                                                      10

      administrative judge’s conclusions that the agency weighed the relevant factors
      and that the penalty of removal was within the tolerable limits of reasonableness.
      The Board will not consider the evidence the appellant submitted for the first
      time on review.
¶25        The appellant submitted several pieces of evidence with his petition for
      review.   PFR File, Tab 1 at 7-33, Tab 8 at 7-9.        However, under 5 C.F.R.
      § 1201.115, the Board generally will not consider evidence submitted for the first
      time with the petition for review absent a showing that it was unavailable before
      the record was closed despite the party’s due diligence. Avansino v. U.S. Postal
      Service, 3 M.S.P.R. 211, 214 (1980). To constitute new evidence, the information
      contained in the documents, not just the documents themselves, must have been
      unavailable despite due diligence when the record closed.                5 C.F.R.
      § 1201.115(d).
¶26        Here, the appellant provided no explanation for the late filing of the newly
      submitted evidence in his petition for review. See PFR File, Tab 1 at 1-6. For
      the newly submitted evidence in his reply, July 2012 text messages between the
      appellant and S.J. discussing the need to complete a bill of sale for the purchased
      firearm, he alleges that they were previously unavailable due to trouble with a
      cellular device. PFR File, Tab 5, Tab 8 at 3, 7-9. Nevertheless, the information
      from those messages is neither new nor material. Therefore, we find that none of
      his evidence meets the requisite criteria of new and material evidence that was
      not previously available despite due diligence, and we will not consider it.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the United
      States Court of Appeals for the Federal Circuit. You must submit your request to
      the court at the following address:
                                                                                 11

                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

     The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
     If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
                                                                           12

Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
