N OTE : This disposition is nonprecedential.



# United States **Court of Appeals**  **for the Federal Circuit**

______________________

DERRICK L. SCOTT,
Petitioner

v.

DEPARTMENT OF AGRICU LTURE, Respondent

______________________

2015

- 3049

______________________

Petition for review of the Merit Systems Protection
Board in No. SF

- 0752

- 13

- 0345 -R- 1.

______________________

Decided: April 15, 2015

______________________

D ERRICK L. S COTT , Lexington, MS, pro s e.

E RIC J OHN S INGLEY

, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by
J OYCE R. B RANDA

, R OBERT E. K IRSCHMAN

, J R

., S TEVEN J.
G ILLINGHAM

.

______________________

Before W ALLACH

, M AYER

, and C HEN

, Circuit Judges.SCOTT v. DEPARTMENT OF AGRICU LTURE 2

P ER C URIAM

.
Petitioner- Appellant Derrick L. Scott appeals the d ecision of the Merit Systems Protection Board (“Board”) affirming his removal by the U.S. Department of Agricu lture (“Agency”) after the Agenc y found Mr. Scott had violated federal law by making a false statement on a form in connection with the purchase of a firearm. B ecause the Board’s findings were supported by substantial evidence, this court affirms.

B ACKGROUND

Mr. Scott was a law enforc ement 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, T obacco, Firearms and Explosives as part of a firearm purchase from a private dealer (“ATF form”)

. Scott v. De p ’t of Agric. , No. SF

- 0752

- 12

- 0342 -R- 1 (M.S.P.B Oct. 10, 2014) ( Resp’t’s App. 8) (“Final Order”)

. I n the
ATF form, he certified he was the “actual buyer,” and he was not acquiring the firearm “ on behalf of another pe rson. ” Id

. The ATF form asks : “Are you the actual tran sferee/buyer of the f irearm(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 dea ler cannot transfer the firearm(s) to you.” Resp’t’s Br. 3 (citing Resp’t’s App. 160

– 162 ). The ATF form also
include s 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 u n derstand that an swering ‘yes’ to question 11.a. if I am not the actual buyer is a crime punishable as a felony under Fede r al law, and may also violate state and/or local law. I u nd ers tand that a person who answers ‘yes’ to any of the questions 11b through 11k is prohibited fromSCOTT v. DEPARTMENT OF AGRICU LTURE 3

purchasing or receiving a firearm. I unders tand that a person who answers ‘yes’ to question 11.l. is prohibited from purchasing or receiving a firearm,
unles s the person also an swers ‘Yes’ to question 12. I also understand that making any false oral
or written stat e ment, or exhibiting any false or misrepr e sented identification with respect to this transaction, is a crime punishable as a fe l ony u nder Federal la w, and may also vi o late State and/or local law. I further understand that the repetitive purchase of firearms for the purpose of resale for
liv e lihood and profit without a Federal fir e arms license is a violation of law.

Id

. at 3

– 4 (citing Resp’t’s App. 160

– 162 ).

After learning of the purchase, the A gency’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 f orm in connection with the acquisition of a firearm from a licensed dealer.
Mr. Scott later admitted the infor mation he provided was
false and that he purchased the firearm for Samantha Jasmin, a Florida resident a nd partic ipant in a Forest
Service work

- study program for college students.

Because of the lack of candor charge , t he A gency r emoved 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
demonst rate a lack of candor and also saying the A gency's penalty was unreasonable

. In its Initial Decision, t he administrative judge (“AJ”) affirmed the A gency’s decision

to remove Mr. Scott. Mr. Scott filed a petition for review
with the Board stating the A gency failed to prove he
intended to do any wrongd o ing . The Board granted the petition and issued the Final Order affirming the lack of candor charge and subs e quent removal. Mr. Scott a p-SCOTT v. DEPARTMENT OF AGRICU LTURE 4

peals the Final Order to this court. This court has juri sdiction pu rsuant to 28 U.S.C. § 1295 (a)(9) (2012).

D ISCUSSION

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) unsuppor ted 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 ev idence 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 demo nstrate tha t the penalty imposed is reasona ble .” Id. (inte rnal citations omitted).

Mr. Scott only challenges the first prong of this test

— that the charged conduct, lack of candor, had not o ccurred

— when he states “there are no facts that indicate [he] knew [his] acti ons 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 AGRICU LTURE 5

978 (Fed. Cir. 1986 ). “[C] ir cumstantial evidence must generally be relied upon to establish intent. ” I d. (internal citation omitted). It is “appropriate for the [B]oard to
consider whether the ev idence 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
Substanti al 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 th at although he knew Ms. “Jasmin cou l d not purchase a firearm,” he did not know his actions were unlawful as
eviden ced 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 t he
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 a n 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. Jasmi n.

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 Stat e and/or local law.” 1 Resp’t’s Br. 3 (citing Resp’t’s App. 160

– 162)

.

1 It is unlawfulSCOTT v. DEPARTMENT OF AGRICU LTURE 6

T he 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.

C ONCLUSION

For the reasons set forth above, the Board’s dec i sion is

AFFIRMED

C OSTS

No cos ts.

for any person in connection with the acquis i tion or attempted acquisition of any firearm or amm unition from a licensed importer, licensed manufa cturer, licensed dealer, or licensed co l lector, knowingly to make any false or fict i tious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, man ufacturer, dealer, or colle c tor with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the prov i sions of this chapter.

18 U.S.C. § 922(a)(6).