                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DAVID J. THOMPSON,                              DOCKET NUMBER
                   Appellant,                        DC-0752-15-0392-I-1

                  v.

     DEPARTMENT OF COMMERCE,                         DATE: January 12, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           David J. Thompson, Manassas, Virginia, pro se.

           Janine M. Herring and Christiann C. Burek, Washington, D.C., for the
             agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained his removal. 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 or the


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous application of the law to the facts of the case; the administrative
     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, 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 appellant served as a General Engineer with the agency in Washington,
     D.C. Initial Appeal File (IAF), Tab 6 at 34. The agency issued the appellant a
     notice of proposed removal charging him with two specifications of falsification
     and one specification of lack of candor based upon answers he provided in his
     preemployment application paperwork.       Id. at 4-10.   Specifically, the agency
     alleged that the appellant engaged in falsification when he indicated that he had
     not been fired from any job for any reason on both his declaration for Federal
     employment and his questionnaire for a national security position. Id. at 7. The
     agency also alleged that the appellant lacked candor when he reported that he left
     his prior position of Federal employment because of a “lack of security
     clearance”; however, according to the agency, the appellant was removed from
     his prior Federal position for failing to meet a condition of employment. Id. at 8.
¶3        The appellant provided both an oral and a written response to the agency’s
     notice of proposed removal. IAF, Tab 5 at 41-42, 46-115. The deciding official
     subsequently issued a decision letter sustaining both charges and finding that the
     proposed removal was warranted in light of the seriousness of the appellant’s
     misconduct. Id. at 30-40. The appellant filed a timely appeal of his removal,
     which, following a hearing, the administrative judge sustained.       IAF, Tab 38,
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     Initial Decision (ID). In his initial decision, the administrative judge found that
     the agency proved that the appellant intentionally omitted that he had been
     removed from his prior position of employment with the Marine Corps
     Intelligence Activity, and he thus sustained both specifications supporting the
     falsification charge. ID at 2-8. The administrative judge further found that the
     appellant lacked candor when failed to disclose the nature of his prior removal
     from Federal service on his questionnaire for a national security position. ID
     at 8-9.    Based on these established charges of misconduct, the administrative
     judge found that the appellant’s removal promoted the efficiency of the service
     and that it fell within the tolerable limits of reasonableness under Douglas v.
     Veterans Administration, 5 M.S.P.R. 280 (1981). ID at 9-12.
¶4            The appellant has filed a petition for review reasserting that he
     misunderstood the nature of the questions posed to him in the preemployment
     applications and that there is a difference between being fired, being terminated,
     and being removed. Petition for Review (PFR) File, Tab 1 at 5-6. The appellant
     also argues that he received state unemployment benefits after being removed
     from his prior position of Federal service, thus supporting his claims that he was
     not fired for cause and that he did not complete the forms inaccurately. Id. at 9.
     The agency has filed a response in opposition to the petition for review. PFR
     File, Tab 3.
¶5            To establish a charge of falsification, the agency must prove by
     preponderant evidence that the appellant: (1) supplied wrong information; and
     (2) knowingly did so with the intention of defrauding, deceiving, or misleading
     the agency. See Boo v. Department of Homeland Security, 122 M.S.P.R. 100,
     ¶ 10 (2014). The intent element of a falsification charge may be established by
     circumstantial evidence or inferred when the misrepresentation is made with a
     reckless disregard for the truth or with conscious purpose to avoid learning the
     truth.     Id.   The Board has clarified that, consistent with Leatherbury v.
     Department of the Army, 524 F.3d 1293, 1300 (Fed. Cir. 2008), an agency also
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     must also show that the appellant engaged in falsification for his own private
     material gain.    Id., ¶ 12.   In determining whether the agency has proven an
     appellant’s intent, the Board will consider the totality of the circumstances
     surrounding    the appellant’s     conduct,    including   the   appellant’s    plausible
     explanation for his conduct, if any. Id., ¶ 10.
¶6         We agree with the administrative judge that the agency proved both
     specifications supporting its falsification charge. The record demonstrates that
     the appellant marked “no” on his declaration for Federal employment when asked
     whether, among other things, he had “been fired from any job for any reason”
     during the last 5 years, and that he also marked “no” on his national security
     position questionnaire in response to a similar question about his prior Federal
     employment within the past 7 years. IAF, Tab 7 at 27-28, 65-66. Contrary to the
     answers the appellant provided, he was removed from his prior Federal position
     for cause in May 2011. Id. at 93. We agree with the administrative judge that the
     circumstances surrounding the appellant’s completion of these forms imply that
     he intentionally completed them in this manner, 2 and that his intentional omission

     2
       The appellant conceded that he completed these forms in this manner, and there is no
     dispute that he engaged in the conduct, as alleged. ID at 6. Upon our review of the
     appellant’s national security position questionnaire, we note that the appellant stated
     that he was “accused [by his former employer] of being many things that were not true”
     and that his prior employer “made up false charges for which [he] never was able to
     defend against.” IAF, Tab 7 at 27. The appellant further completed a summary of
     discipline and warnings he received during his prior Federal service on his national
     security questionnaire. Id. at 27-28. Despite these admissions, the appellant expressly
     answered “no” to whether he was fired, quit after being told he would be fired, or left
     employment by mutual agreement following charges or allegations of misconduct or
     notice of unsatisfactory performance, which is the substance of one of the agency’s
     falsification specifications. Id. at 28; see IAF, Tab 6 at 7. Thus, although the appellant
     was forthright about portions of his prior Federal service, we agree with the
     administrative judge that the agency proved that the appellant intentionally falsified his
     national security position questionnaire when he failed to disclose he was fired from his
     prior position of employment.          See Christopher v. Department of the Army,
     107 M.S.P.R. 580, ¶ 17 (2008) (holding that a partial disclosure of correct information
     does not outweigh a finding of intentional falsification on a preemployment
     application), aff’d, 299 F. App’x 964 (Fed. Cir. 2008).
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     was done to obscure the circumstances surrounding the termination of his prior
     Federal service. ID at 6-8. Consistent with our analysis in Boo, we find the
     appellant’s obfuscation of the circumstances surrounding his prior removal was
     done for private material gain, and thus supports a falsification charge.
     See 122 M.S.P.R. 100, ¶ 13 (finding that an intent to secure Federal employment
     could satisfy the private material gain element of a falsification charge) (citing
     Delessio v. U.S. Postal Service, 33 M.S.P.R. 517, 520-21, aff’d, 837 F.2d 1096
     (Fed. Cir. 1987) (Table)).
¶7        On review, the appellant argues that both the agency and the administrative
     judge applied a colloquial definition of the term “fired” and that he did not
     understand his prior removal from Federal service to fall within the meaning of
     this term as used on the preemployment documents. PFR File, Tab 1 at 5-6. The
     administrative judge, however, addressed this argument in his initial decision, and
     he rendered credibility determinations against the appellant insofar as he argued
     that he did not believe he was fired from his prior position and that he did not
     have to disclose the circumstances of his prior termination from Federal service
     on the preemployment forms. ID at 7. We defer to the administrative judge’s
     credibility determinations on this issue, and the appellant’s challenge to these
     determinations   amounts     to   nothing   more   than   disagreement   with   the
     administrative judge’s findings, which is an insufficient basis for overturning an
     initial decision on petition for review.      See Carney v. Department of the
     Navy, 49 M.S.P.R. 468, 471 (1991). We concur with the administrative judge,
     moreover, that the appellant’s explanations for his omissions are not plausible,
     and they do not obviate finding that the appellant intentionally sought to deceive
     the agency for his own material gain. See Christopher, 107 M.S.P.R. 580, ¶ 19
     (finding the appellant’s explanation for only partially disclosing information on
     his preemployment application was not credible).
¶8        We also agree with the administrative judge that the agency established its
     lack of candor charge based on the appellant’s failure to give a complete answer
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      on his national security position questionnaire.    ID at 7-8.    Differing from
      falsification, lack of candor is a broader, more flexible concept, and may involve
      a failure to disclose something that should have been disclosed to make a
      statement accurate and complete.           See Hoofman v. Department of the
      Army, 118 M.S.P.R. 532, ¶ 13 (2012), aff’d, 526 F. App’x 982 (Fed. Cir. 2013).
      We likewise agree with the administrative judge that the appellant lacked candor
      when he responded that “the reason for leaving the employment activity” with his
      former employer was a “lack of a security clearance.” IAF, Tab 7 at 28. The
      appellant’s answer to this question misleads the reader and suggests that he
      voluntarily left Federal service, a fact that is not borne out by his employment
      history. We concur with the administrative judge that the appellant’s response to
      this question was less than forthright, and that his failure to explain the
      circumstances surrounding his “leaving the [prior] employment activity” supports
      the   agency’s   lack   of   candor      charge.   Chavez   v.   Small   Business
      Administration, 121 M.S.P.R. 168, ¶ 6 (2014) (finding a failure to explain the
      context of an answer supported a lack of candor charge); Hoofman, 118 M.S.P.R.
      532, ¶¶ 13-15 (finding that the failure to explain the circumstances of a leave
      request established a lack of candor).
¶9          In similar cases, the Board has found that an employee’s removal for
      falsification and lack of candor promotes the efficiency of the service, and we
      find no reason to depart from this standard here.     See Whelan v. U.S. Postal
      Service, 103 M.S.P.R. 474, ¶ 9 (2006), aff’d, 231 F. App’x 965 (Fed. Cir. 2007);
      Harmon v. General Services Administration, 61 M.S.P.R. 327, 334 (1994).
¶10         We similarly find no reason to disturb the administrative judge’s finding
      that the appellant’s removal falls within the bounds of reasonableness under the
      facts of this case. Where, as here, all of the agency’s charges are sustained, the
      Board will review the agency-imposed penalty only to determine if the agency
      considered all the relevant factors and exercised management discretion within
      the tolerable limits of reasonableness. See Whelan, 103 M.S.P.R. 474, ¶ 10. We
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agree with the administrative judge that the deciding official conscientiously
considered all of the relevant factors in rendering a penalty determination in this
case, including the seriousness of the appellant’s omissions, the intentional nature
of his misconduct, and the fact that he was on notice of the need to complete the
preemployment and national security position questionnaires in an accurate and
truthful manner. IAF, Tab 5 at 35-37. The deciding official also considered the
appellant’s aggregate length of service, absence of disciplinary history while
employed with the agency, and his interpretations of the forms’ terms as
mitigating factors, but he found that these considerations did not outweigh either
the seriousness of the appellant’s misconduct or the fact that his actions
undermined his supervisor’s trust and confidence in his abilities to perform his
responsibilities.    Id.   Finally, the deciding official weighed the appellant’s
argument that he suffered from a medical condition that contributed to his
misinterpretation of the forms, but he found this explanation unpersuasive. Id.
at 37; see Sherlock v. General Services Administration, 103 M.S.P.R. 352, ¶ 11
(2006) (explaining that a medical condition that contributed to the charged
conduct is entitled to weight as a mitigating factor). Under these circumstances,
we concur with the administrative judge that the appellant’s removal falls within
the bounds of reasonableness, and we affirm the initial decision.

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


                            United States Court of Appeals
                                for the Federal Circuit
                              717 Madison Place, N.W.
                               Washington, DC 20439
                                                                                  8

      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 U.S. 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 U.S. 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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono       for     information   regarding   pro   bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.   The Merit Systems 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.
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