UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

BRIAN A. SEIGARS,

Appellant,

v. 

DEPARTMENT OF THE AIR FORCE,

Agency. 

DOCKET NUMBER

DA-0752-15-0091-I-1

DATE: September 14, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Anthony W. Walluk, Esquire, San Antonio, Texas, for the appellant. 

Kyle Little, Esquire, Randolph Air Force Base, Texas, 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 

erroneous application of the law to the facts of the case; the administrative 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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, a GS-12 Air Traffic Control Specialist (Terminal) with the 

80th Flying Training Wing at Sheppard Air Force Base in Texas, was removed for 

“Deliberate Misrepresentation.” The agency charged that, between approximately 

January 1 and May 1, 2014, he inflated the hours he worked by submitting 

Automated Time Attendance and Production System (ATAAPS) entries or other 

time cards showing that he worked approximately 91.75 hours more than he 

actually did. The agency referenced 22 incidents representing approximately 

$5000 in pay. Initial Appeal File (IAF), Tab 4, Subtabs 4a-4b, 4h. In effecting 

the action, the agency considered the appellant’s past disciplinary record, an 

August 26, 2014 letter of reprimand he received for sleeping on duty. Id.,

Subtab 4h. 

¶3 On appeal, the appellant argued that the penalty of removal was too harsh. 

IAF, Tab 1 at 3. He requested a hearing. Id. at 2. During adjudication, the

appellant acknowledged the errors that occurred in his time and attendance 

records, but he claimed that they were unintentional and were caused by the 

agency’s lack of supervisory oversight and its failure to properly train employees 

on the ATAAPS. IAF, Tab 15. 

¶4 In her initial decision, the administrative judge found that the agency 

proved the elements of misrepresentation by preponderant evidence. IAF,
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Tab 25, Initial Decision (ID) at 6. Specifically, she found that the agency proved 

that the appellant supplied incorrect information and that he did so knowingly 

with the intention of defrauding, deceiving, or misleading the agency. ID at 6-9. 

The administrative judge further found that the agency’s action promotes the 

efficiency of the service, ID at 9, and that removal is a reasonable penalty for the 

sustained charge, ID at 9-14, and she affirmed the agency’s action, ID at 1, 14. 

¶5 The appellant has filed a petition for review, Petition for Review (PFR) 

File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 3. 

¶6 The appellant does not deny that he provided incorrect information, but he 

contends that the administrative judge erred in finding that he did so with the 

intention of defrauding, deceiving, or misleading the agency. The intent to 

defraud or mislead the agency 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. See Whelan v. U.S. 

Postal Service, 103 M.S.P.R. 474, ¶ 6 (2006), aff’d, 231 F. App’x 965 (Fed. Cir. 

2007). Whether intent has been proven must be resolved by considering the 

totality of the circumstances, including the appellant’s plausible explanation, if 

any. Boo v. Department of Homeland Security, 122 M.S.P.R. 100, ¶ 10 (2014). 

¶7 In finding that the agency established intent, the administrative judge first 

found that the appellant’s testimony that he did not know how to enter leave in 

the ATAAPS until after he was confronted with the attendance discrepancies was 

at odds with his having correctly inputted a number of hours of annual and sick 

leave during the period at issue. ID at 7. She also considered the appellant’s 

testimony that he could not open the PowerPoint slides that the agency provided 

to employees to explain the ATAAPS but found it contrary to the credible 

testimony of the 80th Flying Training Wing Resource Advisor that the appellant

had called her office several times for assistance in using the System and that she 

provided such assistance to him. In addition, the administrative judge considered 

the appellant’s claim that he might have supplied wrong information because he 
4

did not know how to make changes to time cards that already had been submitted 

until after the period at issue but found it inconsistent with the testimony of one 

of his coworkers that, when he had to change a time card after it had been 

submitted, he asked for and received assistance either from his certifier or from 

the Wing Resource Advisor. ID at 7-8. The administrative judge also found the 

appellant’s claim that his ATAAPS entries were simply innocent errors 

inconsistent with what she found was a pattern of his claiming more time than he 

actually worked and less leave than he actually took, information that he could 

access that should have revealed the discrepancies to him and which demonstrated 

on his part a reckless disregard for the truth. The administrative judge further 

found that the appellant personally benefited from his deception. ID at 8. 

¶8 In disputing the administrative judge’s finding that the agency proved that 

he provided the wrong information with the intention of defrauding, deceiving, or 

misleading the agency, PFR File, Tab 1 at 3-6, the appellant challenges the 

administrative judge’s finding that the Wing Resource Advisor was credible in 

her hearing testimony, whereas the appellant himself was not, id. at 3-4. To 

resolve credibility issues, an administrative judge must identify the factual 

questions in dispute, summarize the evidence on each disputed question, state 

which version she believes, and explain in detail why she found the chosen 

version more credible, considering a number of factors, as appropriate, set forth 

by the Board in its seminal case of Hillen v. Department of the Army, 35 M.S.P.R.

453, 458 (1987) (factors comprising the witness’s opportunity and capacity to 

observe the event or act in question, the witness’s character, prior inconsistent 

statement by the witness, a witness’s bias, or lack of bias, the contradiction of the 

witness’s version of events by other evidence or its consistency with other 

evidence, the inherent improbability of the witness’s version of events, and the 

witness’s demeanor). The Board must give due 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 
5

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). Here, the administrative judge found that the Wing Resource Advisor 

testified in a very clear, direct, and straightforward manner and that she was an

extremely credible and knowledgeable witness, ID at 7, but that the appellant’s 

testimony was not clear, direct, or straightforward and was inconsistent with 

specific evidence of record, which she detailed, ID at 6. Because the appellant

has failed to provide sufficiently sound reasons for overturning the administrative 

judge’s credibility determinations that were based on her observations of the 

witnesses’ demeanor, we find it appropriate to defer to them. Haebe, 288 F.3d

at 1302. 

¶9 The appellant also argues that the administrative judge did not consider his 

claim that the only training the agency provided on ATAAPS, PowerPoint slides,

did not provide adequate assistance for him in submitting his time and attendance 

records as evidenced by the fact that other employees had to ask for help. PFR 

File, Tab 1 at 5. On the contrary, the administrative judge did address this claim, 

but she found, considering the testimony of one of the appellant’s witnesses, that 

assistance was available and that the appellant took advantage of such assistance. 

ID at 7. 

¶10 The appellant also argues on review that, in finding that the appellant’s 

actions were intentional, the administrative judge failed to give proper 

consideration to the fact that he had numerous illnesses and hospitalizations 

during the period at issue, causing him to use more leave than he had in the past,

and that he had no motive to falsify his entries because he had sufficient leave 

balances when the first of his errors occurred and had recently won a significant 

amount of money in the lottery. PFR File, Tab 1 at 4, 8. These claims are 

properly considered under the totality of the circumstances in connection with the 

plausibility of the appellant’s explanation. Boo, 122 M.S.P.R. 100, ¶ 10. As 

noted, the administrative judge did consider the appellant’s claim that he did not 
6

know how to properly request leave on the ATAAPS, but found it incredible. ID

at 8. Whether the appellant had a motive to falsify his time and attendance is not 

indicative of whether he acted intentionally since motive reflects only an 

individual’s inducement to do an act. Black’s Law Dictionary 891 (9th ed. 2009). 

In any event, to the extent that the administrative judge may have considered the 

appellant’s leave balances or his lottery winnings, it is well established that

failure to mention all of the evidence of record does not mean that the

administrative judge did not consider it in reaching her decision. Marques v. 

Department of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 

776 F.2d 1062 (Fed. Cir. 1985) (Table). 

¶11 The appellant also argues on review that, in analyzing the penalty, the 

deciding official failed to properly consider the factors set forth by the Board in

Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). PFR File,

Tab 1 at 11-12. Specifically, the appellant contends that the deciding official 

did not give adequate consideration to his lack of prior discipline, the fact that the 

incidents did not affect his function at work, that “he did not have notice until 

afterwards,” and that his numerous medical problems during the period at issue 

resulted in a high number of days absent. Id. at 12. 

¶12 The record reflects that the appellant received a letter of reprimand on 

August 26, 2014, for an incident of sleeping on duty that occurred on May 29, 

2014. IAF, Tab 4, Subtab 4i, Subtab 4n at 1. In the Douglas factor checklist that 

the deciding official completed, he noted the letter of reprimand under 

Employee’s Past Disciplinary Record but indicated that it was a “neutral” factor, 

not aggravating or mitigating, id., Subtab 4c at 2, and at hearing, he testified that 

the letter of reprimand was not a significant factor in his penalty analysis,

Hearing Compact Disc (HCD). The administrative judge found that the letter of 

reprimand met the criteria for consideration as past discipline, Bolling v. 

Department of the Air Force, 9 M.S.P.R. 335, 339‐40 (1981) (stating that the 

Board’s review of a prior disciplinary action is limited to determining whether 
7

that action is clearly erroneous, if the employee was informed of the action in 

writing, the action is a matter of record, and the employee was permitted to 

dispute the charges before a higher level of authority than the one that imposed 

the discipline), but she credited the deciding official’s testimony that he was not 

influenced by the letter of reprimand, and it does not appear that the

administrative judge construed it to be an aggravating factor in her review. ID 

at 13. In fact, the appellant should not have been considered to have had any past 

discipline because, at the time of the offense for which he was removed 

(January‐May 2014), he had no disciplinary record, as the letter of reprimand was 

issued on August 26, 2014. See Wigen v. U.S. Postal Service, 58 M.S.P.R. 381, 

384‐85 (1993). To the extent that the administrative judge erred in considering 

the letter of reprimand, however, any such error did not prejudice the appellant’s 

substantive rights because the administrative judge found, and we agree, that, 

even in the absence of any prior discipline, removal is a reasonable penalty for 

the sustained charge. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 

282 (1984). 

¶13 In considering the effect of the appellant’s offense on his ability to perform 

his duties and on his supervisor’s confidence in him, the deciding official 

acknowledged that the appellant’s misconduct did not affect his ability to do his 

job or his supervisor’s confidence or trust in his ability to do his job, but that it 

did affect his confidence in the appellant’s ability to uphold the organization’s 

mission. IAF, Tab 4, Subtab 4c at 3. The deciding official’s testimony was in 

accord as he described the appellant’s high level of responsibility as a Watch 

Supervisor and instructor in the Air Traffic Control facility and explained that the 

misconduct he committed diminished the overall trust he had in the 

appellant. HCD. 

¶14 Regarding the appellant’s claim that he “did not have notice until 

afterwards,” the deciding official determined, and the administrative judge found, 
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that the appellant knew or should have known, when he completed his time and 

attendance records as he did, that he was representing that he worked 

approximately 91.75 hours more than he actually did. IAF, Tab 4, Subtab 4b; ID

at 8. That conclusion is unaffected by the fact that the agency did not discover 

the discrepancies until sometime after the appellant entered the data. 

¶15 The appellant next argues that his medical problems and related absences 

should have been considered a mitigating factor, rather than a “neutral” factor as 

the deciding official described it. He found that the appellant’s medical problems 

and absences did not affect his ability to properly fill out his time card or 

otherwise affect his judgment. IAF, Tab 4, Subtab 4c at 7. The administrative 

judge agreed, finding that any claim that the appellant’s sleep apnea contributed 

to his misconduct was inconsistent with evidence that he otherwise performed 

adequately at work and submitted leave in ATAAPS properly for some absences. 

ID at 12. 

¶16 Because the agency’s charge has been sustained, the Board’s review of the 

penalty selection is limited to determining whether it is so excessive as to be an 

abuse of discretion or is otherwise arbitrary, capricious, or unreasonable. 

Douglas, 5 M.S.P.R. at 302. The administrative judge found that the deciding 

official carefully considered the appropriate Douglas factors, both aggravating 

and mitigating, in determining to remove the appellant, and that removal for the 

sustained charge is otherwise within the tolerable limits of reasonableness. ID

at 10-13. In considering the appellant’s challenges to that finding, we agree that 

his misconduct is serious, that his actions caused his supervisor to lose trust in 

him, that no similarly situated employees were treated more favorably, 2 that the 

appellant was aware that his actions would be considered inappropriate, that he 

 2 The agency found that, during the period at issue, two of the appellant’s coworkers 

also had discrepancies in their time and attendance records, but that, because the

coworkers had only minor infractions of 3 hours and 81⁄4 hours, as opposed to the 

appellant’s 91.75 hours, they were not valid comparators. IAF, Tab 4, Subtab 4d at 1-2. 
9

lacked rehabilitative potential based on his refusal to take responsibility for his 

actions, and that there was a lack of alternative sanctions to deter such actions in 

the future. Further, we agree with the administrative judge that, notwithstanding 

the appellant’s years of service and acceptable performance, the penalty of 

removal is within the tolerable limits of reasonableness for the sustained charge. 

¶17 Accordingly, 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: 

U.S. 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 
10

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.

______________________________

Jennifer Everling

Acting Clerk of the Board