UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LYNN RAY BAKER,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

CH-0731-17-0181-I-1

DATE: March 30, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Andre Paul Gaston, Esquire, Oakbrook Terrace, Illinois, for the appellant.

Darlene M. Carr, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member2

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 Member Leavitt’s name is included in decisions on which the three-member Board 

completed the voting process prior to his March 1, 2023 departure.
2

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

affirmed the suitability determination and associated action of the Office of 

Personnel Management (OPM). Generally, we grant petitions such as this one 

only in the following circumstances: 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 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. 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). 

BACKGROUND 

¶2 Effective November 2, 2014, the appellant was appointed to the position of 

Police Officer, GS-05, with the Department of Veterans Affairs (DVA). Initial 

Appeal File (IAF), Tab 9 at 414. In a letter dated August 2, 2016, OPM notified 

the appellant that information discovered during the course of a background 

investigation requested pursuant to his appointment raised a serious question as to 

his suitability for Federal employment, and that he was being charged with 

“Material, intention false statement, or deception or fraud in examination or 

appointment.” IAF, Tab 5, 106-07. In addition, OPM proposed the following 

actions: cancelation of eligibility; cancelation of any reinstatement eligibility 
3

resulting from the appellant’s present appointment; and debarment for a period of 

up to 3 years. Id. at 106. 

¶3 In the summary of charges, OPM explained by way of background that the 

appellant was fired from his position with the Chicago Police Department (CPD) 

on December 6, 2013, because he did not provide accurate information on an 

employment questionnaire concerning his prior employment with the Berwyn 

Police Department, and because he had violated CPD rules and regulations by 

failing to notify his employer that he was subject to a criminal investigation, by 

failing to cooperate in a criminal investigation, and by being arrested. Id. at 109. 

In light of the appellant’s termination from CPD, OPM determined that the

appellant made material and false statements regarding his employment history on 

five separate occasions. Id. at 110-12. We will discuss those incidents below.

¶4 First, when the appellant initially applied for the DVA Police Officer 

position on September 8, 2014, he answered “no” to Question 12 in the Optional 

Form 306 (OF-306), Declaration for Federal Employment which asked the 

following:

During the last 5 years, have you been fired from any job for any 

reason, did you quit after being told that you would be fired, did you 

leave any job by mutual agreement because of specific problems, or 

were you debarred from Federal employment by [OPM] or any other 

agency? If “YES” use item 16 to provide the date and explanation of 

the problem, reason for leaving, and the employer’s name and 

address.

IAF, Tab 9 at 446. The appellant signed the OF-306 on September 8, 2014, 

certifying that “to the best of my knowledge and belief, all of the information on 

and attached to this Declaration for Federal Employment . . . is true, correct, 

complete, and made in good faith.” Id. at 447.

¶5 Second, on October 10, 2014, the appellant completed a Standard Form 85P 

(SF-85P), Questionnaire for Public Trust Positions, through the Electronic 

Questionnaires for Investigative Process (e-QUIP). Id. at 421-44. Section 12 of 

the SF-85P similarly asked the applicant if, in the last 7 years, any of the 
4

following happened to him: “(1) Fired from a job; (2) Quit after being told you’d 

be fired; (3) Left a job by mutual agreement following allegations of 

unsatisfactory performance; (5) Left a job for other reasons under unfavorable 

circumstances.” Id. at 433. The appellant responded “No.” Id. By signing the 

SF-85P, the appellant certified under penalty of perjury, “My statements on this 

form, and any attachments to it, are true, complete, and correct to the best of my 

knowledge and belief and are made in good faith.” Id. at 442. 

¶6 Third, on November 3, 2014, upon his appointment to the Police Officer 

position, the appellant again signed the previously submitted OF-306, thus

recertifying his previous answers, including his response to Question 12. Id.

at 448-49.

¶7 Fourth, when the appellant participated in a personal interview with an 

OPM investigator on December 1, 2015, the appellant stated that he had never 

been fired from a job, left a job after being told he would be fired, or left a job by 

mutual agreement after allegations of unsatisfactory performance or other 

unfavorable circumstances. Id. at 383. However, when confronted by the 

investigator about his termination from the CPD, the appellant responded that he 

was not terminated; instead, he left voluntarily and was eligible for rehire, and he 

did not have any issues while employed at the CPD. Id. 

¶8 Fifth, the appellant completed a third OF-306 on January 23, 2016, when he 

applied for a Deportation Officer position with the Department of Homeland 

Security. Id. at 273-74. In completing this OF-306, he again answered “No” to 

question 12. Id.

¶9 OPM considered the appellant’s response to its proposal in which he 

asserted two main arguments: (1) that he resigned from CPD when he was 

notified of his arrest and prior to being terminated; and (2) that he relied on an 

attorney’s legal advice both in completing his subsequent Federal employment 

application and in believing that, because he was acquitted of all charges, he 

would not have to provide any information regarding the arrest. IAF, Tab 5
5

at 53-85. The appellant claimed that, because his termination was incidental to 

the arrest, the expungement meant that “any collateral consequences should not 

have been provided in a job application.” Id. at 59. 

¶10 On January 18, 2017, OPM issued a decision finding the appellant

unsuitable for Federal employment based on the charge of material, intentional 

false statement, or deception or fraud in examination or appointment. IAF, Tab 5 

at 18-21. OPM directed DVA to separate the appellant within 5 business days of 

receiving OPM’s decision. Id. OPM also canceled any eligibilities the appellant 

may have had for appointment or reinstatement to any position in competitive 

service, excepted service that noncompetitively converts to the competitive 

service, or career appointment to positions in the Senior Executive Service, and 

debarred him from competition for, or appointment to, any covered position until 

January 18, 2020. Id. 

¶11 The appellant filed a Board appeal regarding OPM’s decision and requested 

a hearing. IAF, Tab 1. On appeal, the appellant reasserted the arguments he 

raised before OPM. IAF, Tabs 1, 12. After holding a hearing, the administrative 

judge issued an initial decision affirming OPM’s decision. IAF, Tab 17, Initial 

Decision (ID). The administrative judge found that OPM proved by preponderant 

evidence that the appellant provided incorrect information, as alleged, that he 

knowingly provided incorrect information with the intention of defrauding the 

agency, and that any belief by the appellant that he could answer “no” to the 

questions regarding his prior employment was unreasonable. ID at 15-17. The 

administrative judge further found that the appellant’s “failure to disclose his 

prior termination was blatantly misleading and more consistent with a conscious 

purpose to avoid learning the truth than a willingness to disclose truthful 

information.” ID at 16. Accordingly, the administrative judge sustained the 

charge. ID at 16. After finding that OPM proved a nexus between the appellant’s 

falsification and the integrity and efficiency of the service, the administrative 

judge affirmed the suitability determination. ID at 16-18.
6

¶12 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. Although OPM was granted an extension of time to file a response to 

the appellant’s petition, it did not do so. PFR File, Tabs 3-4. 

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge correctly sustained OPM’s charge of Material, 

Intentional False Statement, or Deception or Fraud in Examination or 

Appointment.

¶13 To prevail in a negative suitability determination appeal, OPM must 

demonstrate by preponderant evidence that the appellant’s conduct or character 

may have an impact on the integrity or efficiency of the service, based on one or 

more of the specific factors listed in 5 C.F.R. § 731.202(b). Hawes v. Office of 

Personnel Management, 122 M.S.P.R. 341, ¶ 5 (2015); see 5 C.F.R. 

§§ 731.101(a), 732.202(a), 731.501(b). The Board has jurisdiction to review all 

aspects of a suitability determination, including whether the charged conduct 

renders an individual unsuitable for the position in question. Hawes,

122 M.S.P.R. 341, ¶ 5. To establish unsuitability based on a charge of 

falsification, OPM must prove by preponderant evidence that the information was 

incorrect and that the appellant knowingly provided incorrect information with 

the intent of defrauding. Id., ¶ 21. 

¶14 As the administrative judge found, the record evidence clearly shows that 

the appellant was terminated from his Police Officer position with the CPD. IAF,

Tab 15, Hearing Compact Disc (HCD) (Testimony of CPD Chief Captain); Tab 5 

at 133. The appellant’s termination was based on his violation of agency rules 

and regulations, including a failure to notify the department that he was the 

subject of a criminal investigation, a failure to cooperate in a criminal 

investigation by Berwyn Police Department, his arrest by the Berwyn Police 

Department, and his provision of five false answers to questions on his CPD

Personnel History Questionnaire, including false statements about his termination 

from his position with the Berwyn Police Department. IAF, Tab 9 at 198-202. 
7

Thus, because the record evidence shows that the CPD terminated the appellant 

based on multiple violations of rules and regulations, we agree with the 

administrative judge that his termination from the CPD was not a “legal 

consequence associated with his arrest.” IAF, Tab 5 at 197-99. 

¶15 The appellant reasserts that he was advised by his legal counsel that he did 

not have to disclose his termination because his arrest record was expunged, and 

he argues that the administrative judge misinterpreted the Board’s decision in 

Doerr v. Office of Personnel Management, 104 M.S.P.R. 196 (2006). PFR File, 

Tab 1 at 10. The appellant contends that Doerr establishes that there is no intent 

to deceive when one has received legal advice and relies on it. Id. at 11. We are 

not persuaded by the appellant’s argument.

¶16 In Doerr, the appellant was charged with possession with intent to 

distribute a controlled substance and use of possession of drug paraphernalia. 

104 M.S.P.R. 196, ¶ 2. The appellant subsequently entered into an abeyance 

agreement that did not include a conviction. Id. There, OPM charged the 

appellant with falsely completing her application because she indicated that she 

had not been convicted of a crime, imprisoned, or on probation or parole. Id., 

¶ 3. The Board found that she reasonably relied on her attorney’s advice that,

under Utah law, she could answer “no” to questions regarding convictions for 

crimes or being on probation because the pretrial diversion program she 

participated in was quite different than probation. Id., ¶ 6. The appellant also 

provided evidence that she specifically sought advice from her criminal lawyer 

before completing the application. Id. Further, her attorney’s advice was 

consistent with Utah law. Id.

¶17 Here, however, the relevant Illinois law does not specifically indicate that,

when an arrest has been expunged, an applicant for a position can state they were 

never terminated from a position. IAF, Tab 13 at 7-67. In addition, the 

appellant’s termination from the CPD was not solely based on the arrest in 

question, but instead was based on multiple violations of the police department’s 
8

rules and regulations. IAF, Tab 9 at 198-202. Moreover, unlike in Doerr, the 

administrative judge in this case found the appellant’s testimony that he 

specifically asked his attorney how to respond to questions regarding his 

employment to be not credible. ID at 13. 

¶18 The appellant challenges the administrative judge’s determination that he 

was not credible, and he asserts that he answered truthfully, though hesitantly, as 

he remembered the details. PFR File, Tab 1 at 11. The appellant appears to 

assert that his delayed responses were the result of his diagnosis of post-traumatic 

stress disorder stemming from his military service. Id. However, the

administrative judge thoroughly reviewed the hearing testimony, provided a

detailed discussion of the evidence and testimony as required under Hillen v. 

Department of the Army, 35 M.S.P.R. 453, 458 (1987),3and found the appellant’s 

testimony that his misrepresentations were not intentional to be not credible, ID 

at 13. We discern no basis to overturn the administrative judge’s credibility 

determinations, which were based in part on her observations of witness 

demeanor. See Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1373 

(Fed. Cir. 2016) (finding that the Board must defer to an administrative judge’s 

demeanor-based credibility determinations regardless of whether demeanor is 

explicitly discussed). 

¶19 Therefore, we find that the record evidence shows that the appellant knew 

he was terminated from the CPD for various reasons, including an arrest, and that 

his negative responses to whether he had been fired were incorrect. While the 

 

3

To resolve credibility issues, an administrative judge must identify the factual 

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

versions he believes, and explain in detail why she found the chosen version more 

credible, considering such factors as: (1) the witness’s opportunity and capacity to 

observe the event or act in question; (2) the witness’s character; (3) any prior 

inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the 

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

with other evidence; (6) the inherent improbability of the witness’s version of events; 

and (7) the witness’s demeanor. Hillen, 35 M.S.P.R. at 458.
9

appellant continues to argue that he did not intend to provide inaccurate 

information, it is clear from the record that he knew that he did not leave his 

employment with the CPD under favorable circumstances and that he failed to 

indicate this at any time during his employment process for the DVA Police 

Officer position. Accordingly, we conclude that the appellant has shown no basis 

upon which to disturb the initial decision.

NOTICE OF APPEAL RIGHTS4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

 

4

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
10

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 
11

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 
12

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review e ither with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.5 The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, and 11. 

 

5

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510. 
13

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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

 

 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board