Freeland v. Dhs

Case: 20-1344 Document: 36 Page: 1 Filed: 08/07/2020

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

DAVID C. FREELAND,
Petitioner

v.

DEPARTMENT OF HOMELAND SECURITY,
Respondent
______________________

2020-1344
______________________

Petition for review of the Merit Systems Protection
Board in No. CH-0752-18-0077-I-2.
______________________

Decided: August 7, 2020
______________________

DAVID C. FREELAND, Belle Plaine, MN, pro se.

JIMMY MCBIRNEY, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by ETHAN P.
DAVIS, ROBERT EDWARD KIRSCHMAN, JR., PATRICIA M.
MCCARTHY.
______________________

Before LOURIE, O’MALLEY, and CHEN, Circuit Judges.
Case: 20-1344 Document: 36 Page: 2 Filed: 08/07/2020

2 FREELAND v. DHS

PER CURIAM.
Pro se appellant David Freeland appeals from a deci-
sion of the Merit Systems Protection Board (Board) affirm-
ing the Department of Homeland Security’s (DHS or
Agency) decision to remove Mr. Freeland from his position
for lack of candor. For the reasons set forth below, we af-
firm.
BACKGROUND
Mr. Freeland formerly worked for DHS as a supervi-
sory human resource specialist in the Recruitment and
Placement Branch of a DHS Human Resources Operations
Center (HROC). Mr. Freeland was conditionally appointed
to this position on September 20, 2015. His appointment
was subject to the completion of a background investiga-
tion conducted by the Office of Personnel Management
(OPM).
Prior to his appointment with DHS, Mr. Freeland was
a supervisory human resources specialist with the Army
Civilian Human Resources Agency (ACHRA). He resigned
in May 2015, after he had been issued a proposed 14-day
suspension for negligent performance of duties. Addition-
ally, at the time of his resignation, he was the subject of a
workplace sexual harassment investigation.
After Mr. Freeland received a tentative offer from
DHS, he was required to complete an employment back-
ground questionnaire for a position of public trust, known
as an SF-85P. Question 12 of the SF-85P asks:
Has any of the following happened to you in the last
7 years?
1 – Fired from a job.
2 – Quit a job after being told you’d be fired.
3 – Left a job by mutual agreement following
allegations of misconduct.
4 – Left a job by mutual agreement following
allegations of unsatisfactory performance.
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FREELAND v. DHS 3

5 – Left a job for other reasons under unfavor-
able circumstances
Appellant’s First S.A. F-2. 1 Mr. Freeland completed and
signed his SF-85P form on two occasions, once on July 18,
2015, and again on September 23, 2015. In both instances,
Mr. Freeland answered “no” to Question 12, without
providing any further details in the corresponding com-
ments section. Id. at F-1–F-2.
On January 26, 2016, in the course of the background
investigation, an OPM investigator interviewed Mr. Free-
land after obtaining additional information regarding Mr.
Freeland’s separation from ACHRA. During this inter-
view, Mr. Freeland initially denied any issues with ACHRA
until being confronted by the interviewer directly that
ACHRA had proposed a disciplinary action against him.
Mr. Freeland also initially denied the sexual harassment
allegation until he was directly confronted by the inter-
viewer with the allegation. After completing the investiga-
tion, OPM issued its findings to the Agency’s Office of
Security and Integrity, Investigations Division (OSI). OSI
reviewed OPM’s investigation, which reflected the discrep-
ancies that OPM had uncovered in Mr. Freeland’s SF-85P
responses and that OPM had rated such an issue a D-issue,
indicating that a significant impediment existed for obtain-
ing background clearance. On August 18, 2016, OSI sent
its review and excerpts from the OPM background investi-
gation to the Chief of the HROC.
On August 18, 2017, DHS issued a proposed notice of
removal based on lack of candor, which was supported by

1 “Appellant’s First S.A.” refers to the initial appen-
dix submitted by the Appellant, “Appellant’s Second S.A.”
refers to the appendix attached to the Appellant’s reply
brief, and “Appellee’s S.A.” refers to the appendix attached
to the Appellee’s response.
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4 FREELAND v. DHS

three specifications. Two of the specifications were based
upon Mr. Freeland’s response to Question 12 on the two
SF-85P forms he completed in July and September of 2015.
The third specification was based on the follow-up inter-
view in which Mr. Freeland initially denied having any
problems or issues in his prior employment with ACHRA.
On September 8, 2017, Mr. Freeland provided an oral reply
and written response along with supporting documentation
to the deciding official. On November 9, 2017, the deciding
official issued a decision letter sustaining the charge and
supporting specifications, noting that Mr. Freeland’s mis-
conduct cast significant doubt regarding his ability to up-
hold the Agency’s mission in an honest manner. Mr.
Freeland’s removal became effective November 13, 2017.
On November 20, 2017, Mr. Freeland appealed his re-
moval. After a hearing, on October 9, 2019, the adminis-
trative judge affirmed the DHS’s decision to remove Mr.
Freeland. In sustaining the charge, the administrative
judge found that the Agency had established by preponder-
ant evidence that Mr. Freeland had engaged in the charged
conduct of lack of candor—based on the totality of the cir-
cumstances, Mr. Freeland “could not reasonably have be-
lieved” the circumstances surrounding his resignation from
ACHRA were not unfavorable. The administrative judge’s
decision became the final decision of the Board on Novem-
ber 13, 2019. Mr. Freeland timely appealed to this court.
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our review is limited and requires this court to affirm
a decision of the Board unless it is “(1) arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with the law; (2) obtained without procedures required by
law, rule, or regulation having been followed; or (3) unsup-
ported by substantial evidence.” 5 U.S.C. § 7703(c). Sub-
stantial evidence is “relevant evidence” that “a reasonable
mind might accept as adequate to support a conclusion.”
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FREELAND v. DHS 5

Simpson v. Office of Pers. Mgmt., 347 F.3d 1361, 1364 (Fed.
Cir. 2003) (internal citation omitted).
The requirements for sustaining a charge for lack of
candor include: (1) that the employee gave incorrect or in-
complete information and (2) that he did so knowingly.
Ludlum v. Dep’t of Justice, 278 F.3d 1280, 1284 (Fed. Cir.
2002). “Lack of candor . . . is a . . . flexible concept whose
contours and elements depend upon the particular context
and conduct involved. It may involve a failure to disclose
something that, in the circumstances, should have been
disclosed in order to make the given statement accurate
and complete.” Id. In this case, substantial evidence sup-
ports the Board’s lack of candor finding. Mr. Freeland
makes a number of arguments regarding the Board’s deci-
sion. For the reasons that follow, we do not find that any
of these arguments justify reversing the Board’s decision.
First, Mr. Freeland argues that the Board failed to con-
sider the reasons that OPM decided to close Mr. Freeland’s
background investigation. We disagree. The Board cred-
ited uncontroverted “agency testimony that per policy,
OPM referred the matter back to the agency to take further
action in its discretion based on the appellant’s conditional
appointment and pending EEO activity.” Appellant’s First
S.A. H-17. In the instant case, we see no reason to overturn
the Board’s determination.
Next, Mr. Freeland notes that he had a pending EEO
case against the Department of the Army (Army) and that
his SF-50 from the Army states simply that he resigned
without referencing any pending discipline or investiga-
tions. The SF-50 states that he “gave no reason for resig-
nation.” Appellant’s S.A. 15. “[T]he SF-50 is not a legally
operative document controlling on its face an employee’s
status. . . .” Grigsby v. Dept. of Commerce, 729 F.2d 772,
775–76 (Fed. Cir. 1984). While it is true that the SF-50
does not state that Mr. Freeland resigned due to pending
discipline or investigation, this lack of information does not
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6 FREELAND v. DHS

mean that Mr. Freeland did not resign under such unfavor-
able circumstances. We note that Mr. Freeland claims that
he was resigning due to emotional duress and that he had
secured a new position. Appellant’s First S.A. E-1–E-2.
This similarly does not indicate an absence of pending dis-
cipline or investigation.
Mr. Freeland also argues that he had finished his con-
ditional period at DHS and therefore OPM’s note that Mr.
Freeland’s appointment was conditional was in error. Mr.
Freeland appears to conflate a Federal employee’s proba-
tionary period with an employment subject to a back-
ground investigation. Mr. Freeland had finished his one
year probationary period with DHS. 5 C.F.R. § 315.801
(“The first year of service of an employee who is given a
career or career-conditional appointment under this part is
a probationary period . . . .”). Because he was no longer a
probationary employee, Mr. Freeland could appeal the
Agency’s removal decision to the Board. See Mastriano v.
F.A.A., F.2d 1152, 1155 (Fed. Cir. 1983) (stating that the
only cognizable right of appeal by a probationary employee
to the Board is limited to allegations where the Agency ac-
tion resulted from discrimination based upon marital sta-
tus or partisan political reasons). Although no longer a
probationary employee, Mr. Freeland’s employment was
still subject to a background investigation. Mr. Freeland
acknowledged as much during the hearing before the ad-
ministrative judge. Appellee’s S.A. 31–32.
Mr. Freeland argues that the Board failed to
acknowledge that the Agency, in its Removal Notice, ac-
cused Mr. Freeland of intentionality. As noted in the
Board’s decision, a lack of candor does not require “inten-
tionality or an intent to deceive.” Ludlum, 278 F.3d at
1284–85 (stating that lack of candor involves “a failure to
disclose something that, in the circumstances, should have
been disclosed to make the statement accurate and com-
plete”). The Board’s finding that Mr. Freeland’s failure to
disclose the unfavorable circumstances regarding his prior
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FREELAND v. DHS 7

employment was enough to support the charge of lack of
candor is supported by substantial evidence, regardless of
any “intentionality.” To the extent Mr. Freeland is arguing
that the deciding official failed to analyze the first Douglas
factor, “the nature and seriousness of the offense, and its
relation to the employee’s duties, position, and responsibil-
ities, including whether the offense was intentional or tech-
nical or inadvertent, or was committed maliciously or for
gain or was frequently repeated,” we find the Board’s de-
termination that the deciding official did consider such a
factor supported by substantial evidence. 2 See Douglas v.
Veterans Admin., 5 M.S.P.R. 280, 305–06 (1981). The rec-
ord contains the deciding official’s analysis of each Douglas
factor and the Board heard testimony from the deciding of-
ficial and credited such testimony. Appellant’s First S.A.
C-1, H-14.
Mr. Freeland also contends that his incorrect answer
on the SF-85Ps was not done for “personal gain.” [BB4-5].
However, a finding of lack of candor does not require a find-
ing of personal gain. Additionally, although the Board
states that a finding of personal gain would be a “common-
sense inference,” it notes that the charge was not based on
a finding of personal gain. Appellant’s First S.A. H-18.
One of the Douglas factors is personal gain. To the extent
Mr. Freeland is arguing the deciding official inappropri-
ately found personal gain in deciding the penalty, we find
the Board appropriately weighed the testimony from the
deciding official and Mr. Freeland. We see no reason to
overturn the Board’s credibility determination.
Mr. Freeland contends that the Labor and Employee
Relations Specialist assigned to Mr. Freeland to coordinate

2 The Douglas factors are used by the deciding offi-
cial to determine whether the consequences of the charge
proposed by the Agency are appropriate. See Douglas, 5
M.S.P.R. at 305–06.
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8 FREELAND v. DHS

questions and information interfered with and obstructed
Mr. Freeland’s due process rights during the reply period
by impeding Mr. Freeland’s ability to obtain affidavits.
The Agency argues that Mr. Freeland fails to explain how
having a single person coordinate information and ques-
tions prejudices him. When an agency proposes to take an
adverse personnel action against one of its employees, it
generally must comply with certain procedural require-
ments. See 5 U.S.C. § 7513; Rhodes v. Merit Sys. Prot. Bd.,
487 F.3d 1377, 1380 (Fed. Cir. 2007). Mr. Freeland fails to
provide any details as to how a single point of contact im-
peded or hampered his ability to contest the proposed ac-
tion. Therefore, we find that Mr. Freeland fails to
sufficiently allege that his due process rights were violated.
Mr. Freeland further argues that the Board disre-
garded that he did not take his ethics training until after
the dates on which he completed iterations of the SF-85P—
therefore, he was not on notice that he had to be forthcom-
ing on his SF-85P form. Contrary to Mr. Freeland’s argu-
ment, the Board’s decision acknowledges that this training
occurred after Mr. Freeland completed the SF-85P form.
Appellant’s First S.A. at H-20. But the Board nonetheless
reasonably found that Mr. Freeland knew he had to be
truthful and complete on the SF-85P form based on his tes-
timony. Additionally, the form itself specifically required
Mr. Freeland to certify that his responses were “true, com-
plete and correct.” Therefore, we find that because Mr.
Freeland acknowledged at the hearing that he was aware
he had to provide truthful and complete answers and the
actual form required him to certify as such, the Board’s de-
termination is supported by substantial evidence.
Mr. Freeland further contends that the Board disre-
garded several facts related to the background investiga-
tion: (1) the information provided by OPM was highly
redacted; (2) the unsworn statements provided by Mr.
Freeland’s previous supervisors contained false allega-
tions; and (3) the statements by the OPM investigator
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FREELAND v. DHS 9

contained false allegations. “Procedural matters relative
to discovery and evidentiary issues fall within the sound
discretion of the board and its officials.” Curtin v. Office of
Pers. Mgmt., 846 F.3d 1373, 1378 (Fed. Cir. 1988). “If an
abuse of discretion did occur with respect to the discovery
and evidentiary rulings, in order for petitioner to prevail
on these issues he must prove that the error caused him
substantial harm or prejudice to his rights which could
have affected the outcome of the case.” Id. at 1379. First,
Mr. Freeland has failed to sufficiently allege what redacted
information would have resulted in substantial harm or
prejudice. With respect to the statements by Mr. Free-
land’s previous supervisors and OPM that are allegedly
false, we find that Mr. Freeland had multiple opportunities
to argue that such statements were false; however, he
failed to do so successfully. That the Board did not find
such statements to be false does not mean that Mr. Free-
land was substantially harmed or prejudiced or that the
Board abused its discretion. Therefore, we conclude no
abuse of discretion occurred in this instance.
Mr. Freeland argues that the Board disregarded addi-
tional charges brought by the Agency against Mr. Free-
land—charges he had no opportunity to respond to. He
specifically argues that he was charged with material fal-
sification in addition to lack of candor. The Agency argues
that Mr. Freeland was only charged with lack of candor,
not falsification or some other charge. Upon review of the
record, there do not appear to be any additional charges
besides lack of candor. On August 7, 2017, Mr. Freeland
received a letter from DHS informing him of the proposal
of removal based on a single charge, “lack of candor.” Ap-
pellant’s First S.A. F-1. This single charge was reiterated
in a letter to Mr. Freeland from DHS on November 9, 2017.
Id. at S.A. C-1. We therefore find that Mr. Freeland was
only charged with a single charge—lack of candor—and
had an opportunity to respond to this single charge.
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10 FREELAND v. DHS

Next, Mr. Freeland argues that the Board erred in de-
termining that his testimony lacked credibility. Along a
similar vein, Mr. Freeland argues that the Board failed to
acknowledge that the deciding official was impeached
throughout the hearing. Both of these arguments concern
the Board’s crediting of witness testimony. As discussed
supra, the standard for overturning the Board’s credibility
determinations is very high. Hanratty, 819 F.2d at 288. In
this case we find that Mr. Freeland’s attacks on the Board’s
credibility findings fall well short of satisfying that stand-
ard.
Additionally, Mr. Freeland argues that the Board used
the incorrect law and lists a number of cases the Board
should have used in its decision. With respect to the ma-
jority of the cases cited, the cases are not relevant because,
as we stated above, Mr. Freeland was charged only with
lack of candor and not falsification. Mr. Freeland indicates
that the Board did not consider Douglas; however, a review
of the Board’s decision indicates that the Board analyzed
whether the deciding official appropriately considered the
Douglas factors. Appellant’s First S.A. H-13; see also Doug-
las, 5 M.S.P.R. at 305–06. The final case, Payton v. Dep’t
of Veterans Affairs, is distinguishable from our case be-
cause in Payton the Board found a due process violation
because the deciding official relied on aggravating factors
not present in the proposed notice of removal. Dkt. No. AT-
0752-14-0055-I-1 (MSPB Jan. 29, 2015). Mr. Freeland does
not appear to be alleging the existence of such a due process
violation. We also find that the proposed notice of removal
in the instant case put Mr. Freeland on notice of potential
aggravating factors. For example, the proposed notice of
removal states “you were aware that the prior Proposed
Discipline and sexual harassment investigation [], would
interfere with your recruitment and placement into the su-
pervisory position that you currently hold. Appellant’s
First S.A. F-5.
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FREELAND v. DHS 11

Finally, Mr. Freeland argues that the Board failed to
account for factual differences between case law on which
it relied and his case. We disagree. The Board’s conclusion
here is consistent with both Schuster v. Office of Pers.
Mgmt., 268 F. App’x 972 (Fed. Cir. 2008), and Johnson v.
Office of Pers. Mgmt., 257 F. App’x 314 (Fed. Cir. 2007). In
Schuster, we found that substantial evidence supported the
Board’s determination that the employee, Mr. Shuster,
made a material, false statement on his SF-85P when ap-
plying for federal employment and was subsequently re-
moved from his position with the agency. Schuster, 268 F.
App’x at 974. When applying to the agency, Mr. Schuster
denied having ever left a job under unfavorable circum-
stances, when in fact, he had resigned from a prior em-
ployer while being investigated for bringing a firearm to
work. Id. Similarly, in Johnson, Mr. Johnson stated that
with respect to his previous employment that he neither
resigned in lieu of termination nor left under unfavorable
circumstances. Johnson, 257 F. App’x at 315. However, an
investigation found that Mr. Johnson had left amid accu-
sations of improper conduct. Id. We upheld the Board’s
decision affirming Mr. Johnson’s removal and debarment
from competitive federal service for three years. Id. Both
of these cases stand for the proposition that removal is ap-
propriate if an employee is not forthcoming on background
paperwork and provide helpful data points with respect to
Mr. Freeland’s case.
CONCLUSION
We have considered Mr. Freeland’s remaining argu-
ments and find them unpersuasive. Accordingly, the final
judgment of the Veterans Court is
AFFIRMED
COSTS
No costs.