Gerhard v. Office of Personnel Management , 505 F. App'x 945 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LAURIE ANSLEY GERHARD,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2012-3187
______________________
Appeal from the Merit Systems Protection Board in
No. AT-0731-11-0735-I-1.
______________________
Decided: February 11, 2013
______________________
LAURIE ANSLEY GERHARD, of Rome, Georgia, pro se.
COURTNEY S. MCNAMARA, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were STUART F. DELERY, Principal Depu-
ty Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and HAROLD D. LESTER, JR., Assistant Director.
______________________
2 LAURIE GERHARD v. OPM
Before NEWMAN and LOURIE, Circuit Judges, and DAVIS *,
District Judge.
PER CURIAM.
Laurie A. Gerhard (“Gerhard”) appeals from the final
decision of the Merit Systems Protection Board (“the
Board”) denying her petition for review. See Gerhard v.
Office of Pers. Mgmt., No. AT-0731-11-0735-I-1 (M.S.P.B.
Sept. 2, 2011) (“Initial Decision”); (M.S.P.B. July 12, 2012)
(“Final Order”). Because substantial evidence supported
the Board’s decision, we affirm.
BACKGROUND
Gerhard was employed as a Nurse Practitioner with
the Department of Health and Human Services (“DHHS”)
at an Indian Health Service facility in Poplar, Montana
from June to December 2009. On September 28, 2009,
during the probationary period of her employment with
DHHS, Gerhard struck a pedestrian while operating a
government-owned vehicle. A police officer arrived at the
scene and after investigating the incident, which included
questioning Gerhard and the pedestrian, filed a police
report. The officer noted at the scene that the front
window of the vehicle was foggy, and Gerhard admitted to
the officer that the front window was covered with frost
during the incident. Gerhard was terminated from her
position for failing to operate a government-owned vehicle
in a safe manner.
In 2010, Gerhard applied and was selected for the po-
sition of Nurse Practitioner with the Pawnee Service Unit
at the Pawhuska Health Center in Oklahoma. According-
ly, on August 13, 2010, Gerhard completed a declaration
for Federal employment form. Question 12 on the form
* Honorable Leonard E. Davis, United States
District Court for the Eastern District of Texas, sitting
by designation.
LAURIE GERHARD v. OPM 3
asked whether the applicant, during the past five years,
had been fired from any job for any reason; Gerhard
checked the “No” option. During the processing of Ger-
hard’s employment paperwork, it was noted that she had
been terminated from her prior Federal employment, and
Gerhard was contacted and asked for an explanation. On
October 12, 2010, Gerhard submitted a signed statement
describing the 2009 incident and stating that she had
been in her car defrosting the front window, that the car
had not been moving, and that upon exiting the car she
noticed a woman crawl out from under the car.
In May 2011, as a result of an investigation into the
incident, the Office of Personnel Management (“OPM”)
made Gerhard ineligible for the position of Nurse Practi-
tioner based on three charges under 5 C.F.R. § 731.202(b):
(1) misconduct or negligence in employment relating to
the original 2009 incident; (2) criminal or dishonest
conduct as a result of her October 12, 2010 statement; and
(3) material, intentional false statement, or deception or
fraud in examination or appointment as a result of her
answer to question 12 of the August 2010 Declaration for
Federal Employment form. OPM also cancelled any
eligibility that Gerhard had or may have had for covered
positions and debarred Gerhard from Federal service
until January 2014.
Gerhard appealed to the Board. In August 2011, the
Administrative Judge (“AJ”) held a hearing and issued a
bench decision sustaining all three of OPM’s charges and
affirming the agency’s decision regarding Gerhard’s
employment. Gerhard v. Office of Pers. Mgmt., No. AT-
0731-11-0735-I-1 (M.S.P.B. Aug. 18, 2011) (“Hearing
Transcript”). On September 2, 2011, the AJ issued an
initial decision formalizing the earlier bench decision.
Initial Decision at 1–2. Specifically, on the charge of
negligence or misconduct during employment, the AJ
concluded that the police officer’s version of events sup-
ported the charge and that the police officer was credible
4 LAURIE GERHARD v. OPM
and corroborated by Gerhard’s testimony at the August
hearing. Hearing Transcript at 10–11. On the charges of
dishonest conduct and providing a material, intentional
false statement, the AJ concluded that OPM had met its
burden of proof by a preponderance of the evidence.
Hearing Transcript at 15, 17. Gerhard petitioned for
reconsideration by the full Board, which was denied.
Final Order at 3–4. The initial decision of the AJ thus
became the decision of the Board.
Gerhard appealed to this court. We have jurisdiction
pursuant to 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
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 reasona-
ble 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).
Gerhard argues that substantial evidence did not
support the Board’s opinion. Specifically, she argues that
the Board failed to take into account that she was not
given a ticket or citation for the vehicle incident. Gerhard
further argues that she did not engage in dishonest
conduct because she did not believe that she had been
fired from her previous employment, only that she had
been released during her probationary period. Gerhard
further argues that DHHS staff were negligent in discov-
ering the previous termination and not acting on it early
enough. Gerhard also argues that she accumulated
LAURIE GERHARD v. OPM 5
expenses relating to relocating for her new job and that
the Board did not take these financial burdens into ac-
count in its decision. Finally, Gerhard argues that the AJ
was biased at the hearing.
We disagree with Gerhard’s arguments. The Board
correctly determined that each of the charges against
Gerhard was supported by substantial evidence. Specifi-
cally, with respect to the charge of misconduct or negli-
gence during employment, the AJ carefully laid out the
testimony and evidence during the hearing and made a
credibility determination on the police officer’s statements
as recounted in the official report. Hearing Transcript at
6–11. The AJ further noted that the police officer’s report
was corroborated by Gerhard’s own testimony at the
hearing. Hearing Transcript at 8–9. Although Gerhard
argues that she was never given a ticket or traffic cita-
tion, the AJ noted this fact at the hearing but affirmed
the charge, relying on the police report and Gerhard’s own
testimony. Hearing Transcript at 8. Essentially, Gerhard
challenges the Board’s credibility determinations, which
are virtually unreviewable by this court. Hambsch v.
Dep’t of Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986)
(holding that a “presiding official’s credibility determina-
tions . . . are virtually unreviewable”).
Substantial evidence further supports the Board’s de-
termination that Gerhard knowingly engaged in dishon-
est conduct and made a material, intentional false
statement. On the dishonest conduct charge, the AJ
noted that Gerhard’s written statement of October 12,
2010 differed from both the version of events contained in
the police officer’s 2009 report and Gerhard’s own testi-
mony at the August 2011 hearing. Hearing Transcript at
12. Regarding the intentional false statement, Gerhard
argues that she did not believe she needed to disclose the
previous firing because she was simply released during a
probationary period. However, at the hearing the AJ
noted that Gerhard signed for receipt of a removal notice
6 LAURIE GERHARD v. OPM
prior to being removed from her 2009 position and that
the notice stated that she was being terminated during
the probationary period due to the 2009 incident. Hear-
ing Transcript at 16. Substantial evidence thus support-
ed the Board’s decision.
Although Gerhard argues that the Board overlooked
her expenses for relocating for the new position, she has
not established how consideration of any financial burden
would have any bearing on the Board’s decision or alter
the result. Further, Gerhard’s argument that the AJ was
biased and had decided the case before the hearing is not
supported by the record. The AJ thoroughly evaluated
each charge, documented the evidence before the court,
and made a determination after weighing the evidence.
We have considered Gerhard’s remaining arguments
and conclude that they are without merit. For the forego-
ing reasons, the decision of the Board is
AFFIRMED
COSTS
No costs.