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