NOTE: This disposition is nonprecedential.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 de-
cision of the Merit Systems Protection Board (“Board”)
affirming his removal by the U.S. Department of Agricul-
ture (“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. Be-
cause 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 per-
son.” Id. The ATF form asks: “Are you the actual trans-
feree/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 un-
derstand 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 un-
der 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 re-
moved 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 juris-
diction 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) unsupport-
ed 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 evi-
dence 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 demon-
strate that the penalty imposed is reasonable.” Id. (inter-
nal citations omitted).
Mr. Scott only challenges the first prong of this test—
that the charged conduct, lack of candor, had not oc-
curred—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 ammu-
nition from a licensed importer, licensed manufac-
turer, 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, manu-
facturer, 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).