Case: 20-1344   Document: 36     Page: 1   Filed: 08/07/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                DAVID C. FREELAND,
                     Petitioner

                            v.

     DEPARTMENT OF HOMELAND SECURITY,
                  Respondent
            ______________________

                       2020-1344
                 ______________________

    Petition for review of the Merit Systems Protection
 Board in No. CH-0752-18-0077-I-2.
                 ______________________

                Decided: August 7, 2020
                ______________________

    DAVID C. FREELAND, Belle Plaine, MN, pro se.

     JIMMY MCBIRNEY, Commercial Litigation Branch, Civil
 Division, United States Department of Justice, Washing-
 ton, DC, for respondent. Also represented by ETHAN P.
 DAVIS, ROBERT EDWARD KIRSCHMAN, JR., PATRICIA M.
 MCCARTHY.
                  ______________________

   Before LOURIE, O’MALLEY, and CHEN, Circuit Judges.
Case: 20-1344    Document: 36      Page: 2    Filed: 08/07/2020




 2                                           FREELAND   v. DHS



 PER CURIAM.
      Pro se appellant David Freeland appeals from a deci-
 sion of the Merit Systems Protection Board (Board) affirm-
 ing the Department of Homeland Security’s (DHS or
 Agency) decision to remove Mr. Freeland from his position
 for lack of candor. For the reasons set forth below, we af-
 firm.
                        BACKGROUND
     Mr. Freeland formerly worked for DHS as a supervi-
 sory human resource specialist in the Recruitment and
 Placement Branch of a DHS Human Resources Operations
 Center (HROC). Mr. Freeland was conditionally appointed
 to this position on September 20, 2015. His appointment
 was subject to the completion of a background investiga-
 tion conducted by the Office of Personnel Management
 (OPM).
     Prior to his appointment with DHS, Mr. Freeland was
 a supervisory human resources specialist with the Army
 Civilian Human Resources Agency (ACHRA). He resigned
 in May 2015, after he had been issued a proposed 14-day
 suspension for negligent performance of duties. Addition-
 ally, at the time of his resignation, he was the subject of a
 workplace sexual harassment investigation.
     After Mr. Freeland received a tentative offer from
 DHS, he was required to complete an employment back-
 ground questionnaire for a position of public trust, known
 as an SF-85P. Question 12 of the SF-85P asks:
     Has any of the following happened to you in the last
     7 years?
         1 – Fired from a job.
         2 – Quit a job after being told you’d be fired.
         3 – Left a job by mutual agreement following
     allegations of misconduct.
         4 – Left a job by mutual agreement following
     allegations of unsatisfactory performance.
Case: 20-1344        Document: 36   Page: 3   Filed: 08/07/2020




 FREELAND   v. DHS                                           3



         5 – Left a job for other reasons under unfavor-
     able circumstances
 Appellant’s First S.A. F-2. 1 Mr. Freeland completed and
 signed his SF-85P form on two occasions, once on July 18,
 2015, and again on September 23, 2015. In both instances,
 Mr. Freeland answered “no” to Question 12, without
 providing any further details in the corresponding com-
 ments section. Id. at F-1–F-2.
      On January 26, 2016, in the course of the background
 investigation, an OPM investigator interviewed Mr. Free-
 land after obtaining additional information regarding Mr.
 Freeland’s separation from ACHRA. During this inter-
 view, Mr. Freeland initially denied any issues with ACHRA
 until being confronted by the interviewer directly that
 ACHRA had proposed a disciplinary action against him.
 Mr. Freeland also initially denied the sexual harassment
 allegation until he was directly confronted by the inter-
 viewer with the allegation. After completing the investiga-
 tion, OPM issued its findings to the Agency’s Office of
 Security and Integrity, Investigations Division (OSI). OSI
 reviewed OPM’s investigation, which reflected the discrep-
 ancies that OPM had uncovered in Mr. Freeland’s SF-85P
 responses and that OPM had rated such an issue a D-issue,
 indicating that a significant impediment existed for obtain-
 ing background clearance. On August 18, 2016, OSI sent
 its review and excerpts from the OPM background investi-
 gation to the Chief of the HROC.
    On August 18, 2017, DHS issued a proposed notice of
 removal based on lack of candor, which was supported by



     1    “Appellant’s First S.A.” refers to the initial appen-
 dix submitted by the Appellant, “Appellant’s Second S.A.”
 refers to the appendix attached to the Appellant’s reply
 brief, and “Appellee’s S.A.” refers to the appendix attached
 to the Appellee’s response.
Case: 20-1344    Document: 36      Page: 4    Filed: 08/07/2020




 4                                           FREELAND   v. DHS



 three specifications. Two of the specifications were based
 upon Mr. Freeland’s response to Question 12 on the two
 SF-85P forms he completed in July and September of 2015.
 The third specification was based on the follow-up inter-
 view in which Mr. Freeland initially denied having any
 problems or issues in his prior employment with ACHRA.
 On September 8, 2017, Mr. Freeland provided an oral reply
 and written response along with supporting documentation
 to the deciding official. On November 9, 2017, the deciding
 official issued a decision letter sustaining the charge and
 supporting specifications, noting that Mr. Freeland’s mis-
 conduct cast significant doubt regarding his ability to up-
 hold the Agency’s mission in an honest manner. Mr.
 Freeland’s removal became effective November 13, 2017.
     On November 20, 2017, Mr. Freeland appealed his re-
 moval. After a hearing, on October 9, 2019, the adminis-
 trative judge affirmed the DHS’s decision to remove Mr.
 Freeland. In sustaining the charge, the administrative
 judge found that the Agency had established by preponder-
 ant evidence that Mr. Freeland had engaged in the charged
 conduct of lack of candor—based on the totality of the cir-
 cumstances, Mr. Freeland “could not reasonably have be-
 lieved” the circumstances surrounding his resignation from
 ACHRA were not unfavorable. The administrative judge’s
 decision became the final decision of the Board on Novem-
 ber 13, 2019. Mr. Freeland timely appealed to this court.
 We have jurisdiction under 28 U.S.C. § 1295(a)(9).
                         DISCUSSION
     Our review is limited and requires this court to affirm
 a decision of the Board unless it is “(1) arbitrary, capri-
 cious, an abuse of discretion, or otherwise not in accordance
 with the law; (2) obtained without procedures required by
 law, rule, or regulation having been followed; or (3) unsup-
 ported by substantial evidence.” 5 U.S.C. § 7703(c). Sub-
 stantial evidence is “relevant evidence” that “a reasonable
 mind might accept as adequate to support a conclusion.”
Case: 20-1344        Document: 36   Page: 5   Filed: 08/07/2020




 FREELAND   v. DHS                                           5



 Simpson v. Office of Pers. Mgmt., 347 F.3d 1361, 1364 (Fed.
 Cir. 2003) (internal citation omitted).
     The requirements for sustaining a charge for lack of
 candor include: (1) that the employee gave incorrect or in-
 complete information and (2) that he did so knowingly.
 Ludlum v. Dep’t of Justice, 278 F.3d 1280, 1284 (Fed. Cir.
 2002). “Lack of candor . . . is a . . . flexible concept whose
 contours and elements depend upon the particular context
 and conduct involved. It may involve a failure to disclose
 something that, in the circumstances, should have been
 disclosed in order to make the given statement accurate
 and complete.” Id. In this case, substantial evidence sup-
 ports the Board’s lack of candor finding. Mr. Freeland
 makes a number of arguments regarding the Board’s deci-
 sion. For the reasons that follow, we do not find that any
 of these arguments justify reversing the Board’s decision.
     First, Mr. Freeland argues that the Board failed to con-
 sider the reasons that OPM decided to close Mr. Freeland’s
 background investigation. We disagree. The Board cred-
 ited uncontroverted “agency testimony that per policy,
 OPM referred the matter back to the agency to take further
 action in its discretion based on the appellant’s conditional
 appointment and pending EEO activity.” Appellant’s First
 S.A. H-17. In the instant case, we see no reason to overturn
 the Board’s determination.
     Next, Mr. Freeland notes that he had a pending EEO
 case against the Department of the Army (Army) and that
 his SF-50 from the Army states simply that he resigned
 without referencing any pending discipline or investiga-
 tions. The SF-50 states that he “gave no reason for resig-
 nation.” Appellant’s S.A. 15. “[T]he SF-50 is not a legally
 operative document controlling on its face an employee’s
 status. . . .” Grigsby v. Dept. of Commerce, 729 F.2d 772,
 775–76 (Fed. Cir. 1984). While it is true that the SF-50
 does not state that Mr. Freeland resigned due to pending
 discipline or investigation, this lack of information does not
Case: 20-1344    Document: 36     Page: 6   Filed: 08/07/2020




 6                                          FREELAND   v. DHS



 mean that Mr. Freeland did not resign under such unfavor-
 able circumstances. We note that Mr. Freeland claims that
 he was resigning due to emotional duress and that he had
 secured a new position. Appellant’s First S.A. E-1–E-2.
 This similarly does not indicate an absence of pending dis-
 cipline or investigation.
      Mr. Freeland also argues that he had finished his con-
 ditional period at DHS and therefore OPM’s note that Mr.
 Freeland’s appointment was conditional was in error. Mr.
 Freeland appears to conflate a Federal employee’s proba-
 tionary period with an employment subject to a back-
 ground investigation. Mr. Freeland had finished his one
 year probationary period with DHS. 5 C.F.R. § 315.801
 (“The first year of service of an employee who is given a
 career or career-conditional appointment under this part is
 a probationary period . . . .”). Because he was no longer a
 probationary employee, Mr. Freeland could appeal the
 Agency’s removal decision to the Board. See Mastriano v.
 F.A.A., F.2d 1152, 1155 (Fed. Cir. 1983) (stating that the
 only cognizable right of appeal by a probationary employee
 to the Board is limited to allegations where the Agency ac-
 tion resulted from discrimination based upon marital sta-
 tus or partisan political reasons). Although no longer a
 probationary employee, Mr. Freeland’s employment was
 still subject to a background investigation. Mr. Freeland
 acknowledged as much during the hearing before the ad-
 ministrative judge. Appellee’s S.A. 31–32.
     Mr. Freeland argues that the Board failed to
 acknowledge that the Agency, in its Removal Notice, ac-
 cused Mr. Freeland of intentionality. As noted in the
 Board’s decision, a lack of candor does not require “inten-
 tionality or an intent to deceive.” Ludlum, 278 F.3d at
 1284–85 (stating that lack of candor involves “a failure to
 disclose something that, in the circumstances, should have
 been disclosed to make the statement accurate and com-
 plete”). The Board’s finding that Mr. Freeland’s failure to
 disclose the unfavorable circumstances regarding his prior
Case: 20-1344        Document: 36   Page: 7   Filed: 08/07/2020




 FREELAND   v. DHS                                           7



 employment was enough to support the charge of lack of
 candor is supported by substantial evidence, regardless of
 any “intentionality.” To the extent Mr. Freeland is arguing
 that the deciding official failed to analyze the first Douglas
 factor, “the nature and seriousness of the offense, and its
 relation to the employee’s duties, position, and responsibil-
 ities, including whether the offense was intentional or tech-
 nical or inadvertent, or was committed maliciously or for
 gain or was frequently repeated,” we find the Board’s de-
 termination that the deciding official did consider such a
 factor supported by substantial evidence. 2 See Douglas v.
 Veterans Admin., 5 M.S.P.R. 280, 305–06 (1981). The rec-
 ord contains the deciding official’s analysis of each Douglas
 factor and the Board heard testimony from the deciding of-
 ficial and credited such testimony. Appellant’s First S.A.
 C-1, H-14.
     Mr. Freeland also contends that his incorrect answer
 on the SF-85Ps was not done for “personal gain.” [BB4-5].
 However, a finding of lack of candor does not require a find-
 ing of personal gain. Additionally, although the Board
 states that a finding of personal gain would be a “common-
 sense inference,” it notes that the charge was not based on
 a finding of personal gain. Appellant’s First S.A. H-18.
 One of the Douglas factors is personal gain. To the extent
 Mr. Freeland is arguing the deciding official inappropri-
 ately found personal gain in deciding the penalty, we find
 the Board appropriately weighed the testimony from the
 deciding official and Mr. Freeland. We see no reason to
 overturn the Board’s credibility determination.
    Mr. Freeland contends that the Labor and Employee
 Relations Specialist assigned to Mr. Freeland to coordinate


     2    The Douglas factors are used by the deciding offi-
 cial to determine whether the consequences of the charge
 proposed by the Agency are appropriate. See Douglas, 5
 M.S.P.R. at 305–06.
Case: 20-1344     Document: 36     Page: 8    Filed: 08/07/2020




 8                                            FREELAND   v. DHS



 questions and information interfered with and obstructed
 Mr. Freeland’s due process rights during the reply period
 by impeding Mr. Freeland’s ability to obtain affidavits.
 The Agency argues that Mr. Freeland fails to explain how
 having a single person coordinate information and ques-
 tions prejudices him. When an agency proposes to take an
 adverse personnel action against one of its employees, it
 generally must comply with certain procedural require-
 ments. See 5 U.S.C. § 7513; Rhodes v. Merit Sys. Prot. Bd.,
 487 F.3d 1377, 1380 (Fed. Cir. 2007). Mr. Freeland fails to
 provide any details as to how a single point of contact im-
 peded or hampered his ability to contest the proposed ac-
 tion. Therefore, we find that Mr. Freeland fails to
 sufficiently allege that his due process rights were violated.
     Mr. Freeland further argues that the Board disre-
 garded that he did not take his ethics training until after
 the dates on which he completed iterations of the SF-85P—
 therefore, he was not on notice that he had to be forthcom-
 ing on his SF-85P form. Contrary to Mr. Freeland’s argu-
 ment, the Board’s decision acknowledges that this training
 occurred after Mr. Freeland completed the SF-85P form.
 Appellant’s First S.A. at H-20. But the Board nonetheless
 reasonably found that Mr. Freeland knew he had to be
 truthful and complete on the SF-85P form based on his tes-
 timony. Additionally, the form itself specifically required
 Mr. Freeland to certify that his responses were “true, com-
 plete and correct.” Therefore, we find that because Mr.
 Freeland acknowledged at the hearing that he was aware
 he had to provide truthful and complete answers and the
 actual form required him to certify as such, the Board’s de-
 termination is supported by substantial evidence.
     Mr. Freeland further contends that the Board disre-
 garded several facts related to the background investiga-
 tion: (1) the information provided by OPM was highly
 redacted; (2) the unsworn statements provided by Mr.
 Freeland’s previous supervisors contained false allega-
 tions; and (3) the statements by the OPM investigator
Case: 20-1344        Document: 36   Page: 9    Filed: 08/07/2020




 FREELAND   v. DHS                                            9



 contained false allegations. “Procedural matters relative
 to discovery and evidentiary issues fall within the sound
 discretion of the board and its officials.” Curtin v. Office of
 Pers. Mgmt., 846 F.3d 1373, 1378 (Fed. Cir. 1988). “If an
 abuse of discretion did occur with respect to the discovery
 and evidentiary rulings, in order for petitioner to prevail
 on these issues he must prove that the error caused him
 substantial harm or prejudice to his rights which could
 have affected the outcome of the case.” Id. at 1379. First,
 Mr. Freeland has failed to sufficiently allege what redacted
 information would have resulted in substantial harm or
 prejudice. With respect to the statements by Mr. Free-
 land’s previous supervisors and OPM that are allegedly
 false, we find that Mr. Freeland had multiple opportunities
 to argue that such statements were false; however, he
 failed to do so successfully. That the Board did not find
 such statements to be false does not mean that Mr. Free-
 land was substantially harmed or prejudiced or that the
 Board abused its discretion. Therefore, we conclude no
 abuse of discretion occurred in this instance.
      Mr. Freeland argues that the Board disregarded addi-
 tional charges brought by the Agency against Mr. Free-
 land—charges he had no opportunity to respond to. He
 specifically argues that he was charged with material fal-
 sification in addition to lack of candor. The Agency argues
 that Mr. Freeland was only charged with lack of candor,
 not falsification or some other charge. Upon review of the
 record, there do not appear to be any additional charges
 besides lack of candor. On August 7, 2017, Mr. Freeland
 received a letter from DHS informing him of the proposal
 of removal based on a single charge, “lack of candor.” Ap-
 pellant’s First S.A. F-1. This single charge was reiterated
 in a letter to Mr. Freeland from DHS on November 9, 2017.
 Id. at S.A. C-1. We therefore find that Mr. Freeland was
 only charged with a single charge—lack of candor—and
 had an opportunity to respond to this single charge.
Case: 20-1344    Document: 36      Page: 10    Filed: 08/07/2020




 10                                           FREELAND   v. DHS



     Next, Mr. Freeland argues that the Board erred in de-
 termining that his testimony lacked credibility. Along a
 similar vein, Mr. Freeland argues that the Board failed to
 acknowledge that the deciding official was impeached
 throughout the hearing. Both of these arguments concern
 the Board’s crediting of witness testimony. As discussed
 supra, the standard for overturning the Board’s credibility
 determinations is very high. Hanratty, 819 F.2d at 288. In
 this case we find that Mr. Freeland’s attacks on the Board’s
 credibility findings fall well short of satisfying that stand-
 ard.
      Additionally, Mr. Freeland argues that the Board used
 the incorrect law and lists a number of cases the Board
 should have used in its decision. With respect to the ma-
 jority of the cases cited, the cases are not relevant because,
 as we stated above, Mr. Freeland was charged only with
 lack of candor and not falsification. Mr. Freeland indicates
 that the Board did not consider Douglas; however, a review
 of the Board’s decision indicates that the Board analyzed
 whether the deciding official appropriately considered the
 Douglas factors. Appellant’s First S.A. H-13; see also Doug-
 las, 5 M.S.P.R. at 305–06. The final case, Payton v. Dep’t
 of Veterans Affairs, is distinguishable from our case be-
 cause in Payton the Board found a due process violation
 because the deciding official relied on aggravating factors
 not present in the proposed notice of removal. Dkt. No. AT-
 0752-14-0055-I-1 (MSPB Jan. 29, 2015). Mr. Freeland does
 not appear to be alleging the existence of such a due process
 violation. We also find that the proposed notice of removal
 in the instant case put Mr. Freeland on notice of potential
 aggravating factors. For example, the proposed notice of
 removal states “you were aware that the prior Proposed
 Discipline and sexual harassment investigation [], would
 interfere with your recruitment and placement into the su-
 pervisory position that you currently hold. Appellant’s
 First S.A. F-5.
Case: 20-1344    Document: 36     Page: 11   Filed: 08/07/2020




 FREELAND   v. DHS                                        11



      Finally, Mr. Freeland argues that the Board failed to
 account for factual differences between case law on which
 it relied and his case. We disagree. The Board’s conclusion
 here is consistent with both Schuster v. Office of Pers.
 Mgmt., 268 F. App’x 972 (Fed. Cir. 2008), and Johnson v.
 Office of Pers. Mgmt., 257 F. App’x 314 (Fed. Cir. 2007). In
 Schuster, we found that substantial evidence supported the
 Board’s determination that the employee, Mr. Shuster,
 made a material, false statement on his SF-85P when ap-
 plying for federal employment and was subsequently re-
 moved from his position with the agency. Schuster, 268 F.
 App’x at 974. When applying to the agency, Mr. Schuster
 denied having ever left a job under unfavorable circum-
 stances, when in fact, he had resigned from a prior em-
 ployer while being investigated for bringing a firearm to
 work. Id. Similarly, in Johnson, Mr. Johnson stated that
 with respect to his previous employment that he neither
 resigned in lieu of termination nor left under unfavorable
 circumstances. Johnson, 257 F. App’x at 315. However, an
 investigation found that Mr. Johnson had left amid accu-
 sations of improper conduct. Id. We upheld the Board’s
 decision affirming Mr. Johnson’s removal and debarment
 from competitive federal service for three years. Id. Both
 of these cases stand for the proposition that removal is ap-
 propriate if an employee is not forthcoming on background
 paperwork and provide helpful data points with respect to
 Mr. Freeland’s case.
                        CONCLUSION
     We have considered Mr. Freeland’s remaining argu-
 ments and find them unpersuasive. Accordingly, the final
 judgment of the Veterans Court is
                        AFFIRMED
                           COSTS
     No costs.
