How Was I To Know They Fired Me the First Time?

By on October 16, 2007 in Court Cases, Current Events with 0 Comments

An IRS clerk argued that he was not aware that he had been fired from a previous federal job with the Air Force, which is why he had failed to disclose it on his application with the Internal Revenue Service. (Roberts v. Office of Personnel Management, C.A.F.C. No. 2007-3214 (nonprecedential), 10/9/07) Neither the Merit Systems Protection Board nor the Federal Circuit Court of Appeals bought this rather creative defense. The facts are taken from the court’s decision.

Roberts had worked as a supply technician at Hill Air Force Base in Utah. He was charged with and removed for failure to follow instructions on unauthorized use of government equipment and making false or misleading statements. In fact he appealed to the MSPB but lost. (Roberts v. Dep’t of the Air Force, DE-0752-00-0006-I-1 [Initial Decision, Feb. 24, 2000], review denied, 88 M.S.P.R. 306 [Table, Mar. 15, 2001]) (Opinion, p. 2)

No problem – Roberts turned around and applied for a job with the IRS and started work about a year after the final MSPB decision on his Air Force case.

However, as part of the application and hiring process with IRS, Roberts twice filled out and signed an Optional Form 306 (as an applicant and then upon starting work), which asked whether within the previous 5 years he had been fired, quit when told he was to be fired, etc. He checked "no" and signed the form. (p. 2)

Lo and behold, when the Office of Personnel Management investigated Roberts’ background, it discovered that he had in fact been removed by the Air Force. OPM notified Roberts that it was proposing that he be ordered removed by the IRS and debarred from federal service up to three years, charging Roberts with "material, intentional false statement or deception or fraud in examination or appointment." (p. 3)

After considering Roberts’ reply to its proposal, OPM ordered IRS to remove Roberts and issued an order debarring him from federal employment for 3 years. Roberts unsuccessfully appealed to the MSPB, so he took his case to court. (p. 3)

Roberts insisted that he had not realized that the Air Force had removed him, hence his "no" answer to the question. The court summarily dismisses this tactic: "The facts…speak for themselves. …[T]he Board did not err in finding it ‘inherently improbable’ that Mr. Roberts went through the prior Board appeal and administrative proceedings in Utah that focused on the reasons why he had been discharged by the Air Force without knowing that he had been fired…" (p. 5)

The court also did not buy Roberts’ argument that the MSPB should have required OPM to produce an expert to give a "professional opinion" on his "thoughts and intent." (p. 4)

In short, for a second time, Mr. Roberts stays fired.

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.