Grayton v. Office of Personnel Management ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MAURICE GRAYTON,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2010-3161
__________________________
Petition for review of the Merit Systems Protection
Board in MSPB Docket No. SF0731100446-I-1.
____________________________
Decided: February 16, 2011
____________________________
MAURICE GRAYTON, of San Diego, California, Pro se.
MATTHEW H. SOLOMSON, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and ALAN J. LO
RE, Assistant Director.
__________________________
GRAYTON v. OPM 2
PER CURIAM.
Maurice Grayton seeks review of the decision of the
Merit Systems Protection Board (“the Board”) upholding
the Office of Personnel Management’s (“OPM”) decision
that Grayton was ineligible for the position of Industry
Operations Assistant (“IOA”) with the Department of
Alcohol, Tobacco, Firearms, and Explosives (“ATF”),
upholding the OPM’s cancellation of Grayton’s eligibility
for positions in the competitive service, and upholding the
OPM’s debarment of Grayton from competition for, or
appointment to, any covered position in the Federal
service until October 15, 2012. See Grayton v. Office of
Personal Management, No. SF0731100446-I-1 (M.S.P.B.
June 23, 2010) (“Board Decision”). Because the Board
applied the correct law and substantial evidence supports
its decision, we affirm.
BACKGROUND
On May 8, 2008, Grayton applied for an IOA position
with the ATF. Board Decision, at 2. The application
required Grayton to complete a Questionnaire for Na-
tional Security Position (SF-86). Id. Grayton submitted
the application online and certified that the information
provided in the application was accurate. Id. In connec-
tion with the application, Grayton also signed a declara-
tion certifying that the information provided in the
application was “true, correct, and complete” and ac-
knowledging that a “false or fraudulent answer to any
question or item” may be grounds to fire him or not hire
him. Id.
The question at issue for this appeal is question 23f of
the application, which asked if Grayton, in the last seven
years, had been “arrested for, charged with, or convicted
of any offense(s),” excluding traffic fines less than $150
unless the violation was alcohol or drug related. The
3 GRAYTON v. OPM
application provided Grayton with an opportunity to
explain his answer should he respond “yes.” Id. at 9.
Grayton answered “no” to question 23f. Id.
The ATF subsequently performed a background inves-
tigation on Grayton. Grayton was informed on October
13, 2009 that the ATF’s background investigation re-
vealed issues of concern, specifically that the ATF discov-
ered that Grayton was charged with spousal abuse,
battery, and vandalism in September 2007, a fact that
Grayton did not disclose on the application. Id. at 2, 5–7.
The OPM charged Grayton with engaging in criminal or
dishonest conduct and intentionally certifying a false
statement in his application for employment with the
ATF. 1 After Grayton responded to the charges, the OPM
determined that Grayton was ineligible for the IOA
position, cancelled all other eligibility for Federal em-
ployment, and debarred Grayton from competition for
Federal employment until October 15, 2012. Id. at 3.
Grayton appealed the OPM’s decision to the Board,
and the administrative judge (“AJ”) assigned to the ap-
peal issued an Initial Decision, finding that the OPM had
established by a preponderance of the evidence that
Grayton was unsuitable for Federal employment. The AJ
found that while the spousal abuse, battery, and vandal-
ism charges were ultimately dismissed, the OPM estab-
lished by a preponderance of the evidence that Grayton’s
1 In a separate letter to the OPM dated August 13,
2008, the ATF additionally concluded that Grayton was
not suitable for the IOA position because he failed to
disclose a felony conviction for assault with a deadly
weapon, failed to disclose that he had been on parole for
that offense, and failed to disclose that he had been
recently debarred from Federal employment. The online
application expressly sought this information, and Gray-
ton answered “no” to each pertinent question.
GRAYTON v. OPM 4
conduct gave rise to “concerns regarding his exercise of
poor judgment and his suitability for the position at issue
solely based on the seriousness of the charges.” Id. at 8.
The AJ found that the victim statements and corroborated
observations by the police officer “clearly establishe[d]
that the conduct was serious.” Id.
The AJ also found that Grayton made an intentional,
material false statement in his application in that “he
responded ‘no’ when asked if he has been arrested for,
charged with or convicted of any offense in the last 7
years and certified his responses on May 8, 2008, knowing
that the answer was incorrect and that he offered no
explanation for this response to the application.” Id. at
10–11. The AJ found that Grayton admitted that, at the
time he certified the truthfulness of his application, he
was aware that he had been charged with a crime in the
past seven years. Id. at 10. In total, the AJ concluded
that Grayton’s conduct “was dishonest and an obvious
lack of good judgment on his part and most certainly
renders him unsuitable for the position in question.” Id.
at 13.
Grayton declined to file a petition for review by the
entire Board, and, accordingly, the Initial Decision be-
came the Final Order of the Board after the period for
Grayton to petition for review lapsed. Grayton timely
appealed the Final Order. We have jurisdiction pursuant
to 5 U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We can only set aside the Board’s deci-
sion if it was “(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
5 GRAYTON v. OPM
substantial evidence.” 5 U.S.C. § 7703(c); see Briggs v.
Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
The Board’s decision is supported by substantial evidence
“if it is supported by such relevant evidence as a reason-
able mind might accept as adequate to support a conclu-
sion.” Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096
(Ct. Cl. 1981) (internal quotation marks omitted).
Grayton argues that the AJ applied the wrong law
and erred in finding that the OPM had shown by a pre-
ponderance of the evidence that Grayton was unsuitable
for Federal employment. He does not dispute that he
certified the accuracy of his online application and signed
a declaration certifying the accuracy of his application.
He also does not dispute that he answered “no” to ques-
tion 23f and does not dispute that, at the time he an-
swered “no,” he knew he had been charged with spousal
abuse, battery, and vandalism. Instead, he argues,
among other things, that question 23f is ambiguous and
unduly complex, violates California law, violates 15
U.S.C. § 1681c (a)(5), violates his 5th Amendment consti-
tutional rights, and places him in double jeopardy. He
also argues that the OPM had an obligation to provide
him with an opportunity to amend his response to the
question. Grayton further argues that the AJ failed to
consider the relevant facts, specifically the dismissal of
the spousal abuse, battery, and vandalism charges.
Finally, Grayton argues that the OPM’s action against
him was based on discrimination based on race, disability,
and sex.
The government argues that substantial evidence
supports the AJ’s findings. The government points to
Grayton’s undisputed criminal history and the undisputed
fact that Grayton intentionally did not disclose that
history on the employment application. The government
also argues that the AJ correctly applied the law, which
GRAYTON v. OPM 6
allows an agency to find an individual unsuitable for
employment for criminal or dishonest conduct, 5 C.F.R.
§ 731.202(b)(2), including material, intentional false
statements, id. § 731.202(b)(3), and allows an agency to
consider the nature and seriousness of the conduct as part
of this determination, id. § 731.202(c)(2).
We conclude that the AJ correctly applied the law and
that substantial evidence supports the AJ’s findings. The
applicable regulations allow an agency to find an individ-
ual unsuitable for employment for criminal or dishonest
conduct, which includes the proffering of material, inten-
tional false statements. 5 C.F.R. §§ 731.202(b)(2),
731,202(b)(3). As part of this determination, the agency
considers, among other things, the nature and seriousness
of the conduct, id. § 731.202(c)(2), the circumstances
surrounding the conduct, id. § 731.202(c)(3), and the
recency of the conduct, id. § 731.202(c)(4). It is undis-
puted that the AJ applied these regulations.
Within this regulatory framework, substantial evi-
dence supports the AJ’s findings. As recounted above, the
record below contains substantial evidence that Grayton
is unfit for the IOA position in light of his criminal his-
tory, including the charges of spousal abuse, battery, and
vandalism that occurred less than one year prior to Gray-
ton’s submission of his application. While these charges
were ultimately dismissed, the victim statements and
officer’s observations provide sufficient evidence of the
seriousness of Grayton’s conduct to support the AJ’s
findings that the OPM had shown that Grayton was
unsuitable for the IOA position as well as the AJ’s conclu-
sion that the OPM properly debarred Grayton from Fed-
eral employment until October 15, 2012. Grayton’s
argument that the AJ should have placed more weight on
the dismissal of the criminal charges simply asks this
court to reweigh the evidence presented below, which we
7 GRAYTON v. OPM
cannot do. Henry v. Dep’t of Navy, 902 F.2d 949, 951
(Fed. Cir. 1990) (“It is not for this court to reweigh evi-
dence before the Board.”). That Grayton was not con-
victed of the charges, without more, is insufficient to
reverse the AJ’s findings that the OPM showed that
Grayton was unsuitable for Federal employment. See
Morgan v. Dep’t of Transp., 300 Fed. App’x. 923, 926 (Fed.
Cir. Nov. 28, 2008) (rejecting petitioner’s arguments that
the agency was required to prove he committed a criminal
act in order to remove him from Federal service—“the
issue before the Board was not whether [petitioner] Mr.
Morgan could be convicted of a crime for his threat, but
rather, whether he could be disciplined by his employer”);
Smith v. U.S Postal Serv., 789 F.2d 1540, 1541 n.1 (Fed.
Cir. 1986) (noting that petitioner need not be convicted of
a criminal offense for agency’s removal to be sustained).
Similarly, Grayton’s intentional, material misrepre-
sentations provide substantial evidence to support the
AJ’s findings. It is undisputed that Grayton, twice certi-
fying that his answers were truthful, falsely represented
on the application that he had not been charged with a
crime in the last seven years, despite knowing at the time
he certified the truthfulness of his application that he had
been charged with spousal abuse, battery, and vandalism
the previous year. These false statements alone consti-
tute substantial evidence supporting the AJ’s finding that
the OPM properly removed Grayton from Federal service.
See Kumferman v. Dep’t of Navy, 785 F.2d 286, 291
(stating that “falsification of records” is an offense that
has “been viewed in the past as sufficiently serious to
warrant removal”).
Grayton’s numerous challenges to question 23f lack
merit. Contrary to Grayton’s claims, question 23f is not
ambiguous or unduly complex. The application expressly
asked Grayton if he had been charged with a crime. The
GRAYTON v. OPM 8
application also provided Grayton with an opportunity to
explain his answer should he answer “yes.” Thus, Gray-
ton’s argument that the OPM should now allow him a
second opportunity for explanation, after a background
investigation discovered that Grayton falsely answered
question 23f, is baseless.
Moreover, as the AJ concluded, the California Labor
Code and the California Rules of Civil Procedure do not
apply to the Federal employment application process.
Board Decision, at 11–12. In any event, we agree with
the AJ that even if Grayton believed that the application
conflicted with the California Labor Code and California
Rules of Civil Procedure, he had an obligation to truth-
fully answer question 23f, which he undisputedly failed to
do.
Similarly, Grayton’s arguments challenging question
23f under Federal law are without merit. Grayton makes
no showing that the 5th Amendment applies to the Fed-
eral application process and, in any event, Grayton did
not assert a 5th Amendment privilege when he answered
question 23f. Grayton also makes no showing that the
double jeopardy clause, which applies to criminal proceed-
ings, applies to the Federal application process. Grayton’s
reliance on 15 U.S.C. § 1681c (a)(5) is similarly misplaced,
as that statute applies to information that a consumer
rating agency may use in a consumer report, and Grayton
fails to provide any basis for applying this statute to the
Federal application process.
Finally, Grayton’s discrimination claims are not prop-
erly before us. First, this court lacks jurisdiction over
discrimination claims under § 7703(b)(1), even in “mixed
cases.” Williams v. Dep’t of Army, 715 F.2d 1485, 1491
(Fed. Cir. 1983) (en banc). Second, in filing this appeal,
Grayton executed this court’s Statement Concerning
9 GRAYTON v. OPM
Discrimination (Form 10) and abandoned his discrimina-
tion claims. In any event, we agree with the AJ that
there is no evidence in the record to support Grayton’s
discrimination claims. Board Decision, at 15–16.
We have considered Grayton’s remaining arguments
and find them to be without merit.
Accordingly, we affirm the Board’s decision that the
OPM proved by a preponderance of the evidence that
Grayton was unsuitable for the IOA position and was
properly removed from and debarred from Federal ser-
vice, with a period of debarment from competition for, or
appointment to, any covered position in the Federal
service lasting until October 15, 2012.
AFFIRMED
COSTS
No costs.