UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DAVID J. THOMPSON,

Appellant,

v.

DEPARTMENT OF COMMERCE,

Agency.

DOCKET NUMBER

DC-0752-15-0392-I-1

DATE: January 12, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board
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