Bradley v. Veterans Admin.

• Decision Date: 30 March 1990
• Docket Number: No. 89-3201,89-3201
• Citation: 900 F.2d 233
• Parties: Robert L. BRADLEY, Jr., Petitioner, v. VETERANS ADMINISTRATION, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 233

900 F.2d 233

Robert L. BRADLEY, Jr., Petitioner, v. VETERANS ADMINISTRATION, Respondent.

No. 89-3201.

United States Court of Appeals Federal Circuit.

March 30, 1990.

James E. Nelson, of Nelson, Hager & Pancake, Huntington, W.Va., argued for petitioner.

Peter G. Barber, of the Civ. Div., Dept. of Justice, Washington, D.C., argued for respondent. With him on the brief were Stuart E. Schiffer, Acting Asst. Atty. Gen., David M. Cohen, Director, and Helene M. Goldberg, Asst. Director. Of counsel was Ginny Hamm, of the Dept. of Veterans Affairs, Lexington, Ky.

Before MARKEY, Chief Judge, and RICH and NIES, Circuit Judges.

NIES, Circuit Judge.

Robert L. Bradley, Jr., seeks review of the final decision of the Merit Systems Protection Board, Docket No. SL07528810128, issued February 7, 1989, sustaining his removal from the Veterans Administration. 39 MSPR 598. Mr. Bradley challenges the Board's decision that the agency proved that he "willingly and knowingly submitted falsified travel claims and inaccurate information with the express purpose of defrauding the government." We agree with petitioner and, accordingly, reverse.

I

Does substantial evidence support a finding that Mr. Bradley made a misrepresentation on travel forms with intent to defraud the government?

II

Our jurisdiction over this appeal from the Board is founded upon 28 U.S.C. Sec. 1295(a)(9) (1982). Pursuant to 5 U.S.C. Sec. 7703(c) (1988), when reviewing an appeal from the MSPB, this court shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be--

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

... or

(3) unsupported by substantial evidence.

Petitioner here asserts that the Board's conclusion that he willingly and knowingly supplied false information to agency officials with an intent to defraud the government is unsupported by substantial evidence. Substantial evidence is defined as:

"more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229 [59 S.Ct. 206, 216, 83 L.Ed. 126] (1938). Accordingly, it "must do more than create a suspicion of the fact to be established...." Labor Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300 [59 S.Ct. 501, 505, 83 L.Ed. 660] (1939).

Universal Camera Corp. v. Labor Board, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951). We must determine whether, considering the record as a whole, the agency's evidence is sufficient to be found by a reasonable factfinder to meet the evidentiary burden applicable to the particular case. Jackson v. Veterans Admin., 768 F.2d 1325 (Fed.Cir.1985); SSIH Equip. S.A. v. United States Int'l Trade Comm'n, 718 F.2d 365, 379 (Fed.Cir.1983) (Nies, J., additional views). In this case, the agency had the burden to prove by a preponderance of the evidence that Mr. Bradley intended to defraud the government.

III

Robert L. Bradley, Jr., married Pilar O. Bradley in 1971 in Mexico; their daughter, Sharon, was born in 1979. Petitioner and Pilar separated in 1980. Petitioner met Noemi G. Saune in 1981, and they started living together. Their daughter, Karen Bradley, was born in 1983. From the time of his separation from Pilar, Mr. Bradley continued to provide financial support for Pilar and Sharon. Pilar and Sharon, who resided in Mexico, visited the United States on several occasions, including living with Mr. Bradley's father in West Virginia while Sharon attended school for the 1984-85 academic year. After divorcing Pilar in 1986, he married Noemi.

Mr. Bradley held the position of Supervisory Librarian, Chief, Library Service, GS-12, with the Veterans Administration in Chillicothe, Ohio, from November 1984 until the summer of 1986 when he requested and obtained an intra-agency transfer to Lexington, Kentucky. Several months before his move, he completed, signed and submitted an Intra-Agency Transfer Request form (form 3918) listing his then-wife, Pilar, and daughter, Sharon, as dependents. Despite the separation, these individuals continued to be shown in his personnel records as his dependents. The form 3918 requested authorization for travel to Lexington in his car, for subsistence expenses for himself and his dependents, and for moving expenses associated with his transfer. Authorization form 3918 specifies no dollar amounts for estimated expenses, but on the basis of the request showing family dependents, the agency authorized up to $12,004 for the expenses of the move, including $700 for "miscellaneous moving expenses."

After the move, Mr. Bradley submitted a travel voucher for $1500 for temporary quarters in Lexington which he specified was for himself alone. That amount is not questioned. He also submitted another voucher for expenses associated with his move in the amount of $2,351.90. Of that amount, $1,615 was claimed for lease termination expenses, not in dispute; $36.90 was for mileage, also not in dispute; and $700 was for "miscellaneous moving expenses." The dispute arises over his claim for $350 of the $700 for "miscellaneous moving expenses."

Under the travel guidelines, an employee is entitled to $350 without documentation for miscellaneous moving expenses in connection with a transfer. ¹ The allowance is designed to cover incidental expenses such as: cutting and fitting rugs and drapes, losses on prepaid contracts; the costs of a new driver's license, and similar items. ² A larger amount can be claimed for such expenses with documentation. An employee who moves with an "immediate family" is entitled to an additional $350 in undocumented expenses regardless of the number of people in his family who move with him. See footnote 1. "Immediate family" includes any dependent child who is a member of the employee's household. ³

There is no dispute that Mr. Bradley was entitled to the additional $350 for miscellaneous moving expenses if he had listed his natural daughter Karen on his form 3918 because she, in fact, lived with her father in Chillicothe and moved with him to Lexington. The government asserts that it was defrauded because he did not list her.

Mr. Bradley asserts that he did not list his daughter Karen on the 3918 request form because he wanted to protect his second "family" from embarrassment and to maintain his privacy about his personal life. The existence of his second "family" was not known to his office colleagues or even to his father. On the actual voucher on which he claimed the $700 for miscellaneous moving expenses, no names of the family members involved in the move are requested. He testified that, when he submitted the voucher claiming the $700, some three months after submitting the form 3918 and about a month after moving, he knew from reading the travel guidelines given to him by the agency that he was entitled to the extra $350 because Karen moved with him:

The travel voucher in question I believe was the one for miscellaneous moving expenses, of which I felt that I was entitled to. And that I was entitled to due to the fact that Karen was my daughter. The instructions--the booklet that they gave us for the change--the permanent move or whatever it's called, stated in there that if you do have--you know, if you have children you are entitled to that. It didn't state the situations under which you are entitled, it just stated that you were entitled to that money. I felt that I was entitled to that full $700.

Sometime after Mr. Bradley began work in Lexington, the agency was informed by an anonymous source that Mr. Bradley moved his second "family" to Lexington, not his first. Almost a year after the move, his supervisor called Mr. Bradley into his office and began inquiring about a person listed in the Lexington telephone directory as "N.S. Bradley" at Mr. Bradley's address. The supervisor also inquired whether Pilar and Sharon had travelled with him to Lexington. Mr. Bradley told him they had. Mr. Bradley testified that he thought that the supervisor was improperly inquiring into his personal affairs. The administrative judge (AJ) found the supervisor's interrogation at that time was not an investigatory interview. This averted Mr. Bradley's charge that the agency had committed a procedural violation of its regulation 821(F) which he asserted requires that an employee be advised of his/her right to remain silent in connection with an investigatory interview. When confronted by an official investigator several months later, Mr. Bradley told the truth about moving his second "family" to Lexington and he immediately repaid $350. The agency began removal proceedings thereafter and also turned the case over to the U.S. attorney for possible criminal proceedings under 18 U.S.C. Sec. 287 (1988). Mr. Bradley was removed but no criminal charges were brought against him.

There is no dispute that the charges against Mr. Bradley required proof not only that he had misrepresented the family members who were involved in his move to Lexington, but also that he did so with an intent to defraud the government. ⁴ In essence, the agency imputes the names of Pilar and Sharon listed by Mr. Bradley on the authorization form 3918 to his later-submitted moving expense voucher which then, per the agency, becomes a false claim for $350 in miscellaneous moving expenses. The agency also infers an intent to defraud from Mr. Bradley's conversation with his Lexington supervisor in which he lied about Pilar and Sharon having accompanied him to Lexington.

The AJ found that the circumstances here did not give rise to an inference of an intent to defraud the government because Mr. Bradley was entitled to the money and his "cover-up" was not material to his right to the $350. On appeal by the agency, the full board rejected Mr. Bradley's testimony that he actually believed Pilar and Sharon might travel with him...