NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

DERRICK L. SCOTT,

Petitioner

v.

DEPARTMENT OF AGRICULTURE,

Respondent

______________________ 

2015-3049

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. SF-0752-13-0345-R-1.

______________________ 

Decided: April 15, 2015

______________________ 

DERRICK L. SCOTT, Lexington, MS, pro se. 

ERIC JOHN SINGLEY, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, for respondent. Also represented by 

JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., STEVEN J.

GILLINGHAM. 

______________________ 

Before WALLACH, MAYER, and CHEN, Circuit Judges.
2 SCOTT v. DEPARTMENT OF AGRICULTURE

PER CURIAM. 

Petitioner-Appellant Derrick L. Scott appeals the decision of the Merit Systems Protection Board (“Board”) 

affirming his removal by the U.S. Department of Agriculture (“Agency”) after the Agency found Mr. Scott had 

violated federal law by making a false statement on a 

form in connection with the purchase of a firearm. Because the Board’s findings were supported by substantial 

evidence, this court affirms. 

BACKGROUND

Mr. Scott was a law enforcement officer at the Forest 

Service with the Agency in Waldport, Oregon. On June 

28, 2012, Mr. Scott completed a form from the Bureau of 

Alcohol, Tobacco, Firearms and Explosives as part of a 

firearm purchase from a private dealer (“ATF form”). 

Scott v. Dep’t of Agric., No. SF-0752-12-0342-R-1 (M.S.P.B 

Oct. 10, 2014) (Resp’t’s App. 8) (“Final Order”). In the 

ATF form, he certified he was the “actual buyer,” and he 

was not acquiring the firearm “on behalf of another person.” Id. The ATF form asks: “Are you the actual transferee/buyer of the firearm(s) listed on this form?” It

includes the following in bold-type: “Warning: You are not 

the actual buyer if you are acquiring the firearm(s) on 

behalf of another person. If you are not the actual buyer, 

the dealer cannot transfer the firearm(s) to you.” Resp’t’s

Br. 3 (citing Resp’t’s App. 160–162). The ATF form also 

includes an advisory that stated in bold-type: 

I certify that my answers to Section A are true, 

correct, and complete. I have read and understand 

the Notices, Instructions, and Definitions on ATF 

Form 4473. I understand that answering ‘yes’ to 

question 11.a. if I am not the actual buyer is a 

crime punishable as a felony under Federal law, 

and may also violate state and/or local law. I understand that a person who answers ‘yes’ to any of 

the questions 11b through 11k is prohibited from 
SCOTT v. DEPARTMENT OF AGRICULTURE 3

purchasing or receiving a firearm. I understand 

that a person who answers ‘yes’ to question 11.l. is 

prohibited from purchasing or receiving a firearm, 

unless the person also answers ‘Yes’ to question 

12. I also understand that making any false oral 

or written statement, or exhibiting any false or 

misrepresented identification with respect to this 

transaction, is a crime punishable as a felony under Federal law, and may also violate State and/or 

local law. I further understand that the repetitive 

purchase of firearms for the purpose of resale for 

livelihood and profit without a Federal firearms 

license is a violation of law.

Id. at 3–4 (citing Resp’t’s App. 160–162). 

After learning of the purchase, the Agency’s Office of 

Inspector General investigated and concluded Mr. Scott

had violated federal law under 18 U.S.C. § 922(a)(6) by 

making a false statement on the ATF form in connection 

with the acquisition of a firearm from a licensed dealer. 

Mr. Scott later admitted the information he provided was 

false and that he purchased the firearm for Samantha 

Jasmin, a Florida resident and participant in a Forest 

Service work-study program for college students. 

Because of the lack of candor charge, the Agency removed Mr. Scott, effective March 6, 2013. Mr. Scott 

appealed his removal to the Board in an adverse action 

claim, stating he made a mistake but his actions did not 

demonstrate a lack of candor and also saying the Agency's 

penalty was unreasonable. In its Initial Decision, the 

administrative judge (“AJ”) affirmed the Agency’s decision 

to remove Mr. Scott. Mr. Scott filed a petition for review 

with the Board stating the Agency failed to prove he

intended to do any wrongdoing. The Board granted the 

petition and issued the Final Order affirming the lack of 

candor charge and subsequent removal. Mr. Scott ap-
4 SCOTT v. DEPARTMENT OF AGRICULTURE

peals the Final Order to this court. This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012).

DISCUSSION

I. Standard of Review

This court’s “scope of . . . review of [B]oard decisions is 

limited to whether they are (1) arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with 

law; (2) obtained without procedures required by law, 

rule, or regulation having been followed; or (3) unsupported by substantial evidence.” Forest v. Merit Sys. Prot. Bd., 

47 F.3d 409, 410 (Fed. Cir. 1995) (citing 5 U.S.C. § 7703(c) 

(1988)). 

The Board’s decision is supported by substantial evidence if “a reasonable person, considering the record as a 

whole, might accept [the evidence] as adequate to support 

[its] conclusion, even though other reasonable persons 

might disagree.” 5 C.F.R. § 1201.56 (2012); Brewer v. U.S. 

Postal Serv., 647 F.2d 1093, 1096 (Ct. Cl. 1981). 

II. Adverse Action Suits and Lack of Candor

“[A]n agency must establish three things to withstand 

challenge to an adverse action against an employee.” 

Pope v. U.S. Postal Serv., 114 F.3d 1144, 1147 (Fed. Cir. 

1997). “First, it must prove, by a preponderance of the 

evidence, that the charged conduct occurred. Second, the 

[A]gency must establish a nexus between that conduct 

and the efficiency of the service. Third, it must demonstrate that the penalty imposed is reasonable.” Id. (internal citations omitted).

Mr. Scott only challenges the first prong of this test—

that the charged conduct, lack of candor, had not occurred—when he states “there are no facts that indicate 

[he] knew [his] actions were unlawful.” Pet’r’s Br. 1 ¶ 2. 

In some cases, evidence directly establishing intent may 

not exist. See Naekel v. Dep’t of Transp., 782 F.2d 975, 
SCOTT v. DEPARTMENT OF AGRICULTURE 5

978 (Fed. Cir. 1986). “[C]ircumstantial evidence must 

generally be relied upon to establish intent.” Id. (internal 

citation omitted). It is “appropriate for the [B]oard to 

consider whether the evidence of record as a whole gave

rise to an inference . . . [of the] requisite intent.” Id.

III. Mr. Scott’s Lack of Candor Charge Was Supported by 

Substantial Evidence

The Board’s finding that Mr. Scott knowingly made a 

false statement with the intent to deceive the dealer was 

supported by substantial evidence. Mr. Scott argues that 

although he knew Ms. “Jasmin could not purchase a 

firearm,” he did not know his actions were unlawful as 

evidenced by the fact that he “did not attempt to cover up 

the purchase” and the fact that he used his credit card. 

Pet’r’s Br. 1 ¶ 2. 

The facts are undisputed: Mr. Scott signed under the 

bold-typed statement in question 11.a, quoted above,

which clearly warned the dealer could not sell the firearm

to Mr. Scott if Mr. Scott was not the actual buyer. Mr. 

Scott admits he knew Ms. Jasmin was unable to purchase 

the weapon. Mr. Scott also stipulated he purchased the 

weapon from the dealer as part of an arrangement with 

Ms. Jasmin in which she would select a firearm and he 

would purchase it for her. The dealer testified that he 

would not have sold the gun to the Mr. Scott if he had 

known Mr. Scott was purchasing it for Ms. Jasmin. 

Mr. Scott certified that his answers were accurate 

when signing the ATF form. The ATF form explicitly 

states “answering ‘yes’ to question 11.a if I am not the 

actual buyer is a crime punishable as a felony under 

Federal law, and may also violate State and/or local law.”1 

Resp’t’s Br. 3 (citing Resp’t’s App. 160–162). 

1 It is unlawful 

 
6 SCOTT v. DEPARTMENT OF AGRICULTURE

The Board certainly had substantial evidence to infer

“that [Mr. Scott’s] false response to question 11.a on the 

ATF [f]orm . . . was made with the intent to mislead the 

seller as to the fact he was purchasing the gun in order to

immediately transfer it to [Ms.] Jasmin.” Resp’t’s App. 

28.

CONCLUSION

For the reasons set forth above, the Board’s decision is 

AFFIRMED

COSTS

No costs.

for any person in connection with the acquisition 

or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, 

knowingly to make any false or fictitious oral or 

written statement or to furnish or exhibit any 

false, fictitious, or misrepresented identification, 

intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any 

fact material to the lawfulness of the sale or other 

disposition of such firearm or ammunition under

the provisions of this chapter. 

18 U.S.C. § 922(a)(6).