Fedweek Legal

The MSPB reversed its administrative judge (AJ) and found that the Social Security Administration was unable to prove that an assistant regional counsel (general attorney), while acting as a Special Assistant U.S. Attorney, made three false statements to the U.S. District Court “to explain her need for an extension of time for a filing in an assigned case.” Holtz v. SSA, 2009 MSPB 125 (7/9/09). While the AJ had mitigated the penalty of removal to a letter of warning, he held that SSA “was not required to prove specific intent because it properly used the general charge of inappropriate behavior … by proving that two of the three specified statements were unintentionally inaccurate.”

The Board denied both the appellant’s and the agency’s petitions for review. However, it reopened the appeal on its own motion to address the AJ’s erroneous interpretation of the agency’s charges against the appellant. The Board found that the “agency’s charge includes the specific intent required for a falsification charge.” Where an agency has used a generic label for a charge, “the Board must look to the specification to determine what conduct the agency is relying on as the basis for its proposed action … If an agency chooses to label an act of misconduct, it is bound to prove the elements that make up the legal definition of that charge.” George v. Army, 104 MSPR 596 (2007), aff’d, 263 F. Appx. 889 (Fed. Cir. 2008); Otero v. USPS, 73 MSPR 198, 202 (1997). Although the agency used the general charge of inappropriate behavior, its specifications and accompanying description “show that the agency charged the appellant was making false statements to the court in her request for an extension of time.”


“Because the agency removed the appellant for making false statements, the agency must prove, by preponderant evidence, that appellant knowingly provided wrong information with the intention of defrauding, deceiving, or misleading the agency.” Haebe v. Justice, 288 F.3d 1288, 1305 (Fed. Cir. 2002); Guerrrero v. VA, 105 MSPR 617 (2007). Merely because an appellant has provided incorrect information “does not control the question of intent for purposes of adjudicating a falsification charge.” Rodriguez v. DHS, 108 MSPR 525 (2008); Mendez v. Treasury, 88 MSPR 596 (2001). The Board reversed the letter of warning because on two of the charges the AJ’s “findings were based upon credibility determinations that included observations of the appellant’s demeanor.” In regard to the third charge, the AJ had “accepted the appellant’s claim that she stated a fact that she believed to be true, even though she may have been mistaken in her belief.” As this determination was also based on credibility determinations that include demeanor observation, it was also entitled to deference. Therefore, the agency had failed to prove its charge.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.


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