NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition 

is not citable as precedent. It is a public record.

United States Court of Appeals for the Federal Circuit 

04-3399 

WILLIAM D. FREEMAN, 

 Petitioner, 

v. 

UNITED STATES POSTAL SERVICE, 

 Respondent. 

__________________________ 

DECIDED: September 6, 2005 

 __________________________ 

Before CLEVENGER, BRYSON, and PROST, Circuit Judges. 

PROST, Circuit Judge. 

William D. Freeman appeals from a decision of the Merit Systems Protection 

Board (“Board” or “MSPB”) that sustained Freeman’s removal from the United States 

Postal Service, Case No. BN0752030133-I-1. Freeman contends that the finding that 

he committed a willful misrepresentation was unsupported by substantial evidence or, 

alternatively, that the penalty of removal was unreasonably harsh. We reverse the 

finding of willful misrepresentation, so it is unnecessary to reach the penalty issue, and 

remand for determination of an appropriate remedy. 
I. BACKGROUND 

William D. Freeman worked for the United States Postal Service (“USPS” or 

“agency”) for twelve years prior to being removed on May 5, 2003. The basis for his 

removal was a charge of misrepresentation related to a forearm/wrist tendonitis 

condition. Freeman suffered this injury on August 17, 2002, while delivering mail. He 

stayed away from work for a substantial portion of the next two months, and on 

February 3, 2003 the Office of Workers Compensation Programs (“OWCP”) accepted 

his claim that the injury was caused by his duties as a rural letter carrier. 

After being informed that Freeman was delivering newspapers during the period 

he was away from work, the USPS investigated Freeman. It charged him with willful 

misrepresentation and listed three specifications under this charge. First, it accused 

Freeman of misrepresenting his physical condition in order to extend his time away from 

work. Specifically, the agency contended that (1) Freeman misrepresented his medical 

condition or true physical condition; (2) his delivery of newspapers was inconsistent with 

the medical restrictions his doctor had imposed; and (3) he was able to return to his 

regular duties at the post office as of September 25, 2002, not October 9, when he 

actually returned. Second, the agency described his alleged misrepresentation as 

requesting and receiving Continuation of Pay from August 31 to October 1 while 

maintaining a daily newspaper delivery job. Finally, it contended that he intentionally 

wrote an incorrect date on the OWCP CA-7 form that he filed just before returning to 

work, extending his “leave buy back” period by one day through October 10, 2002. For 

these alleged offenses, the agency removed Freeman from his position as a rural letter 

carrier. 

04-3399 2
Freeman challenged his removal before the MSPB. The administrative judge 

rejected every specification except one. She found that Freeman had not 

misrepresented his medical condition, because the newspaper route generally took less 

than an hour each day and could mostly be done using his left (non-injured) hand, 

whereas his position with the USPS required him to spend approximately six hours a 

day sorting mail, extensively using his right hand. She also determined that Freeman 

had inquired about returning to work, but the agency barred him until he obtained 

medical clearance. He made a reasonable effort to obtain such clearance but was 

delayed by his doctor’s vacation. Furthermore, the administrative judge did not think 

Freeman “misled the agency” by requesting Continuation of Pay while delivering 

newspapers, because, as of August 31, the agency had already been informed that 

Freeman had been placed off work and was continuing to perform his daily newspaper 

route. 

The only specification the administrative judge sustained was misrepresentation 

of the October ending date for leave buy back. Freeman concedes, at least for 

purposes of this appeal, that he made an error on the CA-7 form. Under the 

“Compensation is claimed for: Inclusive Date Range” heading, he indicated that the 

range was from August 17, 2002 to October 10, 2002. His leave actually extended until 

October 9, which was also the day he returned to work.1

 The administrative judge 

rejected Freeman’s two affirmative defenses for supplying the incorrect information: 

non-accommodation of his disabilities, including Attention Deficit Hyperactivity Disorder 

 1 The government also initially challenged the August 17 date, because 

Freeman worked several days in August after that point. However, the government no 

longer accuses him of any wrongdoing with respect to the August dates. 

04-3399 3
(ADHD), and violation of due process. The administrative judge found that Freeman 

had never indicated in the past that he needed accommodation to perform his job 

duties; on that basis, she concluded that the agency did not neglect its responsibility to 

accommodate him when he filled out his OWCP form. The administrative judge also 

found that Freeman had failed to establish that he actually had any of the other 

disabilities he claimed to have. Finally, the administrative judge found that Freeman 

had been accorded all the procedures outlined in 5 U.S.C. § 7513(b), so he had not 

been denied due process. Concluding that Freeman “failed to offer a plausible 

explanation for the incorrect information furnished on the OWCP form[,]” the 

administrative judge inferred that he “knowingly provided the wrong information.” 

Because the misrepresentation on the OWCP form went “to the essence of the charge,” 

the administrative judge sustained the overall charge of misrepresentation. 

The administrative judge also held that removal was a reasonable penalty for the 

sole affirmed specification based on the “very serious nature of the appellant’s 

misconduct.” She found that the agency had properly exercised its discretion over 

Freeman’s penalty by considering factors listed in Douglas v. Veterans Administration, 5 

M.S.P.R. 280, 305-06 (1981). 

On June 18, 2004, the MSPB summarily affirmed. 

II. DISCUSSION 

Freeman filed a timely petition for review to this court. We have jurisdiction to 

review a final decision of the MSPB under 5 U.S.C. §§ 7703(a)(1) & 7703(b)(1). 

04-3399 4
A. Standard of Review 

This court will overturn a decision of the MSPB if it is “(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.” 5 U.S.C. § 7703(c) (2000). Substantial evidence is evidence 

sufficient to justify, if the case were tried to a jury, a refusal to direct a verdict for the 

party against whom the verdict was rendered. Universal Camera Corp. v. NLRB, 340 

U.S. 474, 477 (1951). 

B. Analysis 

Misrepresentation involves two elements that the government must prove by a 

preponderance of the evidence: (1) supplying incorrect information and (2) doing so 

knowingly, with an intent to deceive or mislead the agency. See Bryant v. Dep’t of the 

Army, 84 M.S.P.R. 202, 207 (1999), aff’d, 243 F.3d 559 (Fed. Cir. 2000). Freeman and 

the government principally dispute whether substantial evidence of intent supports the 

administrative judge’s decision. 

Freeman contends that the administrative judge improperly shifted the burden of 

proof from the agency to him on the issue of intent. In his view, the administrative judge 

went too far in requiring him to prove a lack of deceptive intent, when the government 

bears the burden of proof on this issue. He claims there is no evidence that the 

incorrect dates he entered on his form were anything other than simple mistakes, which 

may have been due to his attention deficit disorder. 

The government contends that the case law supports finding intent to deceive 

when the accused offers no credible explanation for supplying incorrect information. 

04-3399 5
For that proposition, it cites Kumferman v. Department of the Navy, 785 F.2d 286, 290-

91 (Fed. Cir. 1986). The government also asserts that Freeman did not argue before 

the administrative judge that his error was the product of simple inadvertence, but only 

that his allegedly low IQ and/or ADHD caused his error, a contention that the 

administrative judge rejected. 

The burden of proof rests on the agency to show intent; if it fails to do so, 

Freeman is not required to disprove intent. It is true that we have, in some cases, 

permitted an inference of intent when an employee failed to explain false information. 

See Kumferman, 785 F.2d at 290-91. However, that case presented us with additional 

circumstantial evidence of intent, namely, a missing government-owned camera that 

was found in the employee’s home seven months after he stated he was planning to 

ship it out for repair. Id. at 291. If, on the other hand, the employee does provide a 

plausible explanation, “[t]he fact of an incorrect response cannot control the question of 

intent.” Naekel v. Dep’t of Transp., 782 F.2d 975, 978 (Fed. Cir. 1986). In the present 

case, the record shows that Freeman provided a plausible explanation for supplying 

erroneous information. 

According to his psychiatrist, Freeman suffered from moderate to severe ADHD, 

which impaired his ability to concentrate on paperwork. The administrative judge 

acknowledged that Freeman had ADHD, but relied on the fact that Freeman had never 

before sought workplace accommodations for his disorder to conclude that he should 

have had no problems filling out the OWCP form. In our view, the conclusion that 

Freeman’s ADHD had no effect on his ability to fill out the form does not follow from the 

fact that he could perform his job without accommodation. There is no evidence that 

04-3399 6
Freeman’s job duties ordinarily involved filling out forms. He may well have been 

entirely capable of sorting and delivering mail without accommodation, and yet have 

suffered lapses in concentration that made unfamiliar paperwork difficult to follow.2 It is 

plausible that this condition could have led to mistakes. 

We do not think this explanation differs in kind from the one Freeman presented 

to the administrative judge. As the administrative judge noted, “individuals with [ADHD] 

may fail to give close attention to details or make careless mistakes in schoolwork or 

other tasks. Work is often messy and performed carelessly and without considered 

thought.” Thus, ADHD and inadvertence are not two distinct theories; ADHD is an 

explanation of why Freeman was prone to mistakes and lends credence to his “mistake” 

explanation. 

The government apparently provided no evidence of intent to deceive beyond the 

bare falsity of the information Freeman submitted. Evidence that Freeman never 

needed accommodation to perform his letter carrier duties is not evidence of deceptive 

intent, because it does not lead to the conclusion that he could be expected to fill out 

 2 We question the administrative judge’s conclusion that the OWCP form 

was sufficiently clear that she doubted “that the appellant’s ADHD impacted his ability to 

complete the OWCP form correctly.” For example, the form has checkboxes for 

different types of claims for compensation, such as “Leave buy back” and “Other wage 

loss,” with spaces to enter a date range for each type. Freeman filled out the form at 

least twice. Once, he checked both of these boxes, but only provided a date range for 

“Other wage loss.” Another time, on the copy of the form the government apparently 

received, he checked “Leave buy back” only and supplied the date range on that line. 

Also, the form requests date ranges “From” a first date “To” a second date. It is not 

entirely clear whether the employee is supposed to enter the first and last dates for 

which leave is claimed or to provide the last date worked and the date of return. These 

particular sources of confusion do not appear to have directly caused Freeman’s error, 

but they tend to show that filling out an unfamiliar form can be more difficult than normal 

job duties for someone diagnosed with moderate to severe ADHD. 

04-3399 7
the CA-7 form mistake-free. Under Naekel, intent cannot be inferred in such 

circumstances from the falsity of the information alone, so there is no substantial 

evidence of intent to deceive or mislead. 782 F.2d at 978. On that basis, we overturn 

the administrative judge’s decision to sustain the charge of willful misrepresentation. 

Our reversal moots the controversy over whether the penalty was reasonable, so 

we express no opinion on that issue. 

III. CONCLUSION 

For the reasons stated above, we reverse the decision of the MSPB and remand 

for determination of an appropriate remedy in favor of Freeman. 

04-3399 8