NOTE: This disposition is nonprecedential. 

United States Court of Appeals

for the Federal Circuit

______________________ 

RECARDO TERRY,

Petitioner

v.

DEPARTMENT OF AGRICULTURE,

Respondent

______________________ 

2020-1604

______________________ 

Petition for review of the Merit Systems Protection

Board in No. DC-0752-19-0453-I-1.

______________________ 

Decided: April 8, 2021 

______________________ 

DAVID BRANCH, Law Office of David A. Branch, Washington, DC, for petitioner. 

EVAN WISSER, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, 

DC, for respondent. Also represented by BRIAN M.

BOYNTON, MATTHEW JUDE CARHART, ALLISON KIDDMILLER, ROBERT EDWARD KIRSCHMAN, JR. 

______________________ 

Case: 20-1604 Document: 52 Page: 1 Filed: 04/08/2021
2 TERRY v. DEPARTMENT OF AGRICULTURE

Before PROST, Chief Judge, BRYSON and REYNA, Circuit 

Judges.

PER CURIAM.

Petitioner Recardo Terry appeals from a decision of the 

Merit Systems Protection Board upholding his removal 

from his position as an Information Technology Specialist 

with the U.S. Department of Agriculture (“USDA”). We affirm.

I

Mr. Terry was appointed to his position with the USDA

on November 30, 2014. As an Information Technology Specialist, he had access to sensitive information. The agency 

accordingly classified his position as requiring a high degree of trustworthiness. 

The Office of Personnel Management (“OPM”) completed its background investigation of Mr. Terry on November 9, 2015, and forwarded its investigation report to the 

USDA for adjudication. The background report contained 

several areas of concern: a termination by a former employer that Mr. Terry had not disclosed at the time he was 

hired by the USDA, and evidence of financial irresponsibility.

The Personnel and Document Security Division of the 

USDA reviewed the background investigation report in 

early 2018. In the course of assessing the issue of financial 

responsibility, a USDA personnel security specialist noted 

that Mr. Terry had gone through bankruptcy in 2009 and 

that OPM’s investigation had identified twelve unpaid 

debts, of which nine had been sent for collection and three 

had been charged off as uncollectable, see J.A. 186, 195. On 

April 24, 2018, the personnel security specialist sent a letter to Mr. Terry regarding those delinquent accounts, requesting that he respond to the letter within 30 days. J.A. 

186. Mr. Terry did not respond to the letter, nor did he 

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TERRY v. DEPARTMENT OF AGRICULTURE 3

respond to a follow-up email raising the same issue. J.A. 

163, 193, 195.

On May 30, 2018, the Personnel Security Branch of the 

USDA’s Personnel and Document Security Division determined, based on the issues of financial irresponsibility 

raised by the investigation, that it could not make a favorable determination on Mr. Terry’s eligibility to occupy a position designated as a moderate risk public trust level

position. J.A. 196. The agency placed Mr. Terry on administrative leave as of June 15, 2018, due to the issues surrounding his background investigation. J.A. 198.

In a letter sent to Mr. Terry on July 12, 2018, a USDA 

personnel security specialist inquired about Mr. Terry’s 

2011 termination by a prior employer, Dunbar Armor, and 

his failure to disclose that termination on the forms he completed at the time of his appointment to his USDA position.

J.A. 201–02. The two forms in question were Form SF-85P, 

which asked whether he had been fired from a job in the 

past seven years, J.A. 582, and Form OF-306, which asked 

whether he had been fired from any job for any reason during the past five years, J.A. 503. Mr. Terry had answered 

“no” to both questions. The July 12 letter noted that Mr. 

Terry had initially received unemployment benefits following his termination, but that those benefits had been rescinded when the state agency determined that he was 

ineligible for them because he had been fired from his job. 

See J.A. 202.

Mr. Terry submitted a written response to the July 12 

letter. In his response, he stated that he did not believe he 

had been fired by Dunbar Armor. He acknowledged that 

he had repaid the unemployment benefits he had received, 

but he asserted that he had returned the funds because he 

believed he had been overpaid and was required to return 

the overpayment. J.A. 204.

On July 31, 2018, the Personnel Security Branch of the 

USDA’s Personnel and Document Security Division 

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4 TERRY v. DEPARTMENT OF AGRICULTURE

decided it could not make a favorable determination of Mr. 

Terry’s eligibility to occupy a position of public trust. That 

decision was based on Mr. Terry’s “numerous delinquent 

financial liabilities that remain unresolved,” including a 

judgment, and his “pattern of dishonesty and inability to 

provide truthful and accurate information.” J.A. 206–07. 

The Personnel Security Branch referred the matter to 

USDA’s Employee and Labor Relations Branch for possible 

adverse action.

Based on that determination, the USDA proposed to remove Mr. Terry for failure to satisfy a condition of his employment, i.e., receipt of a favorable adjudication of his

background investigation. J.A. 163–67. Mr. Terry challenged his proposed removal before the agency, contending 

that the credit report referred to in the background investigation was out of date and that he had not been terminated from his prior employment. J.A. 128–32. After 

considering his response, USDA removed Mr. Terry for failure to satisfy a condition of his employment, which required that he obtain a favorable adjudication of his 

background investigation. J.A. 39–43.

On appeal to the Merit Systems Protection Board, Mr. 

Terry asserted that his history of unpaid debts did not support the agency’s conclusion that he was financially irresponsible. He also denied that he was aware that he had 

been terminated by his former employer, Dunbar Armor.

The administrative judge who was assigned to the case 

found against Mr. Terry on both grounds. Terry v. Dep’t of 

Agric., No. DC-0752-19-0453-I-1, 2019 WL 6870313 

(M.S.P.B. Dec. 12, 2019). The administrative judge found 

that Mr. Terry had several unpaid debts on his credit record. Mr. Terry had paid off two of those debts in 2016, the 

administrative judge found, but only after they were put 

into collection and only because he realized those debts 

would affect his ability to maintain his employment. The 

administrative judge did not credit Mr. Terry’s assertion 

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TERRY v. DEPARTMENT OF AGRICULTURE 5

that he did not believe he owed money to those creditors 

and that he resolved those debts as soon as he became 

aware of them.

As for two of the debts that had been charged off as uncollectable, Mr. Terry testified that those debts were not 

his, but were generated following an incident of identity 

theft. The administrative judge did not credit Mr. Terry’s 

testimony with respect to those debts. 

As for Mr. Terry’s failure to disclose that he had been 

fired by Dunbar Armor in 2011, the administrative judge 

stated that she did not believe Mr. Terry’s testimony that 

he was unaware that the company had fired him.

Because a favorably adjudicated background investigation was a condition of Mr. Terry’s employment, the administrative judge found that there was a nexus between Mr. 

Terry’s conduct and his employment and that the agency 

was therefore justified in removing him.

Mr. Terry appealed directly from the decision of the administrative judge to this court. We have jurisdiction pursuant to 5 U.S.C. § 7703, and we review the administrative 

judge’s factual findings for substantial evidence. Parrott v. 

Merit Sys. Prot. Bd., 519 F.3d 1328, 1334 (Fed. Cir. 2008). 

II

In his petition for review to this court, Mr. Terry first 

argues that substantial evidence does not support the two 

grounds on which the USDA based its decision to remove 

him: financial irresponsibility and a false representation

on two different employment forms that he had not been 

fired from a job within the previous five or seven years. We 

disagree. 

With respect to the false representation, Mr. Terry testified that he did not believe he had been fired by Dunbar 

Armor and that his denial that he had been fired by a prior 

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6 TERRY v. DEPARTMENT OF AGRICULTURE

employer thus did not constitute an intentional falsehood. 

The administrative judge did not believe that testimony. 

Besides finding Mr. Terry’s testimony not credible, the 

administrative judge noted that other evidence of record

undermined Mr. Terry’s version of events. That evidence 

included a written “notice of discharge” from Dunbar Armor, which Mr. Terry signed, and which stated that the 

reason for his discharge was “failed to follow company policy[.] Sleeping while on duty.” J.A. 547. 

The record also included a summons from the Maryland Department of Labor Licensing and Regulations, 

which had sued Mr. Terry to recover unemployment benefits that Mr. Terry unlawfully claimed after his termination. J.A. 703–06. The papers sent to Mr. Terry in 

connection with that suit included a decision by a state 

hearing examiner that noted that Mr. Terry was ineligible 

for unemployment benefits because he had been “discharged for gross misconduct.” J.A. 707–08. Mr. Terry did 

not contest that finding, but repaid the unemployment benefits that had previously been granted. In light of the administrative judge’s credibility finding and the 

documentary evidence indicating that Mr. Terry knew he 

had been fired by Dunbar Armor, the USDA’s allegation of 

a false representation was plainly supported by substantial 

evidence.

With respect to the charge of financial irresponsibility, 

the administrative judge noted that in response to his proposed removal, Mr. Terry had sent the USDA a copy of his 

credit report as of May 1, 2018, which showed that some of 

the credit issues listed in his 2015 credit report had been 

resolved in 2016. Based in part on Mr. Terry’s own testimony, the administrative judge found that when Mr. Terry 

was required to address his past debt as part of his background investigation, he made an effort to resolve his pending credit issues.

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TERRY v. DEPARTMENT OF AGRICULTURE 7

The administrative judge noted that two of the delinquent accounts had been “charged off,” meaning that the 

creditor had determined that the debt was unrecoverable 

and had quit trying to collect it. As to those two accounts, 

Mr. Terry testified that the debts in question were not his, 

but had been generated as a result of an incident of identity 

theft. The administrative judge noted, however, that Mr. 

Terry offered no evidence that he reported an incident of 

identity theft, nor had he ever disputed the creditors’ 

claims regarding the debts that were ultimately charged 

off. The administrative judge found that Mr. Terry’s testimony about the identity theft was not credible and that the 

evidence supported the USDA’s conclusion that Mr. Terry 

had failed to honor his just debts. In light of those findings, 

the administrative judge determined Mr. Terry was financially irresponsible.

We uphold the administrative judge’s determination, 

which was based in part on her finding that Mr. Terry’s 

explanations of his unpaid debts lacked credibility. As we 

have noted before, credibility determinations by administrative judges in proceedings before the Merit Systems Protection Board are “virtually unreviewable” on appeal. 

Sistek v. Dep’t of Veterans Affs., 955 F.3d 948, 953 n.1 (Fed. 

Cir. 2020); King v. Dep’t of Health & Hum. Servs., 133 F.3d 

1450, 1453 (Fed. Cir. 1998); Hambsch v. Dep’t of the Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986). That is particularly 

true where, as here, the administrative judge’s credibility 

assessment is corroborated by other evidence in the record. 

See Hornseth v. Dep’t of the Navy, 916 F.3d 1369, 1375–76 

(Fed. Cir. 2019); see also Hillen v. Dep’t of the Army, 35 

M.S.P.R. 453, 458 (1987).

Mr. Terry’s second argument on appeal is that the delay between when he was hired and when he was removed 

was impermissibly long and that the charge against him

was so stale that it was barred by laches. Before the administrative judge, Mr. Terry complained about the delay 

between the completion of OPM’s investigation and 

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8 TERRY v. DEPARTMENT OF AGRICULTURE

USDA’s adjudication of the background investigation, but 

he did not raise laches as an affirmative defense. 

Despite Mr. Terry’s failure to raise the defense of 

laches, the administrative judge stated that she was “troubled by the delay.” Terry, 2019 WL 6870313. Nonetheless, 

she found that the agency “adequately addressed the delay,” as two witnesses from the agency’s Personnel and 

Document Security Division testified that the three-year 

delay was “not extraordinary” because of the “substantial 

backlog of pending investigations [within the USDA] which 

has resulted in the delay.” Id.

Mr. Terry argues that he suffers from memory loss and 

PTSD due to injuries incurred while he was in military service. For that reason, he contends, the agency’s unreasonable delay in proposing his removal prejudiced him, as he 

had no recollection of certain matters that occurred several 

years earlier.

The administrative judge found that the delay was not 

so lengthy as to prejudice Mr. Terry. Id. at n.1. Mr. Terry’s 

argument to the contrary is not convincing. While a delay 

such as the one in this case might be problematic if the case 

turned on small details that could reasonably slip from an 

employee’s memory over a period of that length, it is not 

reasonable to suppose that such a delay would lead to a loss 

of memory regarding matters such as whether the person 

had been fired from a job. What is more, Mr. Terry’s defense with regard to the debts reflected in his credit report

did not turn on a lack of memory; he asserted instead that 

he had paid off several of the debts and that others were 

not his, but were attributable to identity theft. He has not 

suggested how his defenses to the debt-related allegations

would have been strengthened if his proposed removal had 

occurred earlier than it did.

We therefore uphold the administrative judge’s determination that the agency properly removed Mr. Terry for 

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TERRY v. DEPARTMENT OF AGRICULTURE 9

failing to obtain a favorably adjudicated background investigation, a requirement of his position.

AFFIRMED

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