Case: 20-1344 Document: 36 Page: 1 Filed: 08/07/2020
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`NOTE: This disposition is nonprecedential.
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`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.
`
`

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`Case: 20-1344 Document: 36 Page: 2 Filed: 08/07/2020
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`2
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`FREELAND v. DHS
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`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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`Case: 20-1344 Document: 36 Page: 3 Filed: 08/07/2020
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`FREELAND v. DHS
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`3
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`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
`
`
`“Appellant’s First S.A.” refers to the initial appen-
`1
`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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`Case: 20-1344 Document: 36 Page: 4 Filed: 08/07/2020
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`FREELAND v. DHS
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`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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`Case: 20-1344 Document: 36 Page: 5 Filed: 08/07/2020
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`FREELAND v. DHS
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`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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`Case: 20-1344 Document: 36 Page: 6 Filed: 08/07/2020
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`FREELAND v. DHS
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`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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`Case: 20-1344 Document: 36 Page: 7 Filed: 08/07/2020
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`FREELAND v. DHS
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`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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`Case: 20-1344 Document: 36 Page: 8 Filed: 08/07/2020
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`FREELAND v. DHS
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`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
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`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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`FREELAND v. DHS
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`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
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`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.
`
`