Naekel v. Department of Transp., 85-2350

• Decision Date: 17 January 1986
• Docket Number: No. 85-2350,85-2350
• Citation: 782 F.2d 975
• Parties: Gerald L. NAEKEL, Petitioner, v. DEPARTMENT OF TRANSPORTATION, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 975

782 F.2d 975

Gerald L. NAEKEL, Petitioner, v. DEPARTMENT OF TRANSPORTATION, Respondent.

Appeal No. 85-2350.

United States Court of Appeals Federal Circuit.

Jan. 17, 1986.

Gerald L. Naekel, pro se.

Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Robert A. Reutershan and Richard W. Oehler, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., for respondent; Mary Jones, Office of Gen. Counsel, F.A.A., of counsel.

Before BENNETT, NIES and NEWMAN, Circuit Judges.

NIES, Circuit Judge.

Gerald L. Naekel pro se appeals from the final decision of the Merit Systems Protection Board, Docket No. DE07528210125 remand 27 M.S.P.R. 496, sustaining the Federal Aviation Administration's decision to remove him from his position as an Air Traffic Control Specialist for submitting false information in connection with an application for employment. We reverse.

Background

Gerald Naekel has been employed in aviation since 1966 as a military and civilian pilot, flight instructor, and FAA air traffic controller. It is uncontested that his civilian and four year military career, including service in Vietnam, has been exemplary in performance. Since 1975, petitioner has sought a position as an air traffic controller preferably in a western state facility in his home area. He was employed with FAA from June 1975 to December 1977 at the Minneapolis Air Route Traffic Control Center. He voluntarily resigned because of harassment by the air traffic controller's union (PATCO) after he filed a successful action against the union for distributing material inside the facility suggesting, inter alia, that non-union people should not receive extra training. Over the next year, while he was again employed as a civilian pilot (including a one-month job with a private carrier, Air Oregon), he repeatedly sought reinstatement in a western state FAA facility where union membership was not so strong. In early 1979, he accepted employment through the Chicago Flight Service Station of FAA as a "trainee" and reported to Oklahoma for FSS training. Because of a conflict over where he could bid for a position, which will be discussed, his employment with FAA ended during the summer of that year. He was employed next by the State of Oregon (Military Affairs Department) and then in commercial aircraft sales. Following the Air Traffic Controllers strike in August 1981, he reapplied in September for a position as an Air Traffic Control Specialist in Denver, was hired, and began work on December 13, 1981. He was removed on March 4, 1982, for "submitting false information on official government documents," that is, on his applications for employment. ¹ Specifically, he was charged with falsely answering that within the last five years (1) he had not been fired from any job for any reason, and (2) that he had not quit a job after being notified that he would be fired. The charges relate to separate incidents. The agency asserted that Naekel was fired from a position with Air Oregon in 1978, and that he resigned from FAA in September, 1979, under threat of removal. On appeal to the MSPB, Naekel's removal for falsifying his employment application was eventually upheld. ² He filed a timely appeal to this court.

Issue

To sustain a charge of "[s]ubmitting false information on official government documents," the agency must prove by a preponderance of the evidence that the employee knowingly supplied wrong information, and that he did so with the intention of defrauding the agency. See Tucker v. United States, 624 F.2d 1029, 1033, 224 Ct.Cl. 266 (1980). The dispositive issue in this case is whether substantial evidence supports the presiding official's decision that the agency proved both elements of the charge with respect to the incidents in question.

Air Oregon

As indicated above, after leaving the FAA at the end of 1977, Naekel filed a number of applications seeking reinstatement. On one or more applications he listed a brief period of employment at the end of 1978 with Air Oregon and stated he had been fired from the job. It was listed, for example, on the application which led to his re-employment with FAA in 1979. His explanation for failure to include the Air Oregon job in his 1981 applications is two-fold. First, he did not believe temporary employment, not material to attaining the government position applied for, need be included in a statement of qualifications. Second, he reasonably believed, as a result of legal advice received between the 1979 and 1981 applications, that he had not, in fact, been "fired" in view of the circumstances leading to his leaving Air Oregon.

The agency argued that every firing--even from a short-term position--had to be reported. To prove Naekel was fired it relied on his prior statements on various applications, a 1979 affidavit from an Air Oregon official (given during a check in connection with his earlier employment by FAA) stating that Naekel had been fired, and a statement in a letter Naekel wrote in 1979 bringing Air Oregon's safety violations to the attention of the FAA.

There is no direct evidence of wrongful intent. However, the presiding official ruled that Naekel had been fired from Air Oregon and that his intent was inferrable from "circumstantial evidence."

There appears to be no dispute that Naekel's Air Oregon employment ended following his refusal to land a flight at the La Grande, Oregon airport during bad weather. Naekel was given an ultimatum by an Air Oregon official (not in La Grande) while he was in the air on that flight. Naekel was at the time of the incident a seasoned pilot. He had earned numerous commendations in Vietnam, which are listed on his discharge papers as DFC/ARCOM/GCM/NDSM/VSM/BSM (3 awards)/AM (35 awards)/VCM w/6/Dev. Naekel testified that, in his opinion, it would have been illegal and would have recklessly endangered the safety of himself and his passengers had he followed Air Oregon's order. His testimony is supported by his report of the incident as a safety violation to FAA dated November 19, 1978 (contemporaneous with the incident), in which he stated:

This past Friday night, November 17, I find myself making a decision that immediately cost me my job and I knew it would. Had I followed a direct order that was contrary to my decision it might have cost someone their life.... and I think you should look into the matter.

* * *

* * *

I was fired because I would not land at the La Grande airport to pick up waiting bank material for the U.S. bank system.

The presiding official utilized the above statement against Naekel as an admission that he had been "fired" and, thus, Naekel's answer was not only wrong, but knowingly false. That conclusion was buttressed, in the opinion of the presiding official, by earlier SF-171's which listed the job and stated that he had been fired and by the affidavit from Air Oregon.

As recognized by the presiding official, a charge of falsification of a government document requires proof not only that an answer is wrong, but also that the wrong answer was given with intent to deceive or mislead the agency. ³

The fact of an incorrect response cannot control the question of intent. Were a bare inaccuracy controlling on the question of intent, the "intent" element of the charge would be subsumed within the distinct inquiry of whether the employee's answer adheres to the true state of facts. A system of real people, pragmatic in their expectations, would not easily tolerate a rule under which the slightest deviation from truth, would sever one's tenuous link to employment. Indeed, an SF-171 does not require absolute accuracy. Instead, an employee must certify that the answers are "true, complete and correct to the best of my knowledge and belief, and are made in good faith." No more than that can reasonably be required. The oath does not ask for certainty and does not preclude a change in one's belief.

In the present case, there exists no evidence of record which directly establishes Mr. Naekel's intention to deceive or mislead the FAA. However, there seldom is such direct evidence. As recognized in Tucker, supra, circumstantial evidence must generally be relied upon to establish intent. Id. 624 F.2d at 1033. Thus, it was appropriate for the board to consider whether the evidence of record as a whole gave rise to an inference that Mr. Naekel possessed the requisite intent at the time he submitted his SF-171's. However, the agency's burden of proving the facts of its case remained the same, whether intent was proved directly or derived inferentially from circumstantial evidence. Either way, the fact sought to be proved must be supported by the preponderance of the evidence. Likewise, the substantial evidence standard by which this court must review findings of fact by the board (5 U.S.C. Sec. 7703(c)(3) (1982)) is constant, whether that fact is supported directly or inferentially. With regard to each fact challenged on appeal, we must determine whether, considering the record as a whole, the board's decision was unreasonable that the agency satisfied its evidentiary burden. See Jackson v. Veterans Administration, 768 F.2d 1325, 1330 (Fed.Cir.1985).

In connection with the Air Oregon incident, it is apparent that the agency's proof was directed almost exclusively to the question of whether Mr. Naekel had, in fact, been fired from that position. The board found that he had been, and, although it is certainly not clear, we accept for the purposes of this appeal that the evidence is sufficient to support that finding. ⁴ The decisive inquiry, therefore, is whether Mr. Naekel intentionally deleted this information from his employment forms with the intent to deceive the FAA. On that question, the evidence of record in this case is woefully inadequate to give rise to an inference of intent which would satisfy the agency's evidentiary burden of proof.

Essentially, the only evidence from which to conclude...