That Question Was Really Hard…But Debarment from Federal Employment Stands Anyway

By on February 24, 2011 in Court Cases, Current Events with 17 Comments

A recent court case underscores the perils of lying to the government on the SF-86 (Questionnaire for National Security Position). (Grayton v. Office of Personnel Management, C.A.F.C. No. 2010-3161 (nonprecedential), 2/16/11)

Grayton found himself not only out of a job, but placed on the Office of Personnel Management’s “debarment” list that prevents him from being appointed to certain positions in the Federal Service until October 2012. (Opinion, p. 2)

Grayton applied for Industry Operations Assistant with the Department of Alcohol, Tobacco, Firearms and Explosives (ATF). He completed an SF-86 online and certified the information provided was accurate, acknowledging by his signature that a false answer could be grounds to not hire him or to fire him after appointment. (p. 2)

Question 23f asked if Grayton had been arrested, charged with or convicted of any offense within the previous seven years. The question specifically excluded traffic fines less than $150 unless alcohol or drug related. Grayton’s answer was “no.” (pp. 2-3)

Lo and behold when ATF completed a background investigation they discovered he had been charged with “spousal abuse, battery, and vandalism” the year before his application. (p. 3) Not surprisingly, OPM charged Grayton for intentionally making a false certification and determined that he was not eligible for the ATF position, canceled his eligibility for Federal employment, and debarred him from competing for Federal jobs for a prescribed period of time. (p. 3)

The Merit Systems Protection Board sustained OPM’s actions. The Administrative Judge concluded that Grayton had made an “intentional, material false statement” by answering “no” to question 23f, even though the criminal charges against Grayton had eventually been dismissed. (p. 4) Grayton admitted at the hearing that he was aware that he had been criminally charged at the time he answered “no” to the question. This added up to being “dishonest” and a “lack of good judgment” on Grayton’s part.

Grayton took his case to court. He didn’t dispute the facts. Instead he argued among other things that OPM discriminated against him (based on race, disability and sex), that the question (23f) is ambiguous, violates various laws, and violates his 5th Amendment constitutional rights, and subjects him to double jeopardy. (p. 5)

The court has upheld the actions of OPM and the MSPB, finding there was substantial evidence to support the AJ’s findings. The court points out is it “undisputed” that Grayton certified twice that his answers were truthful when in fact he knew they were not: “These false statements alone constitute substantial evidence supporting the AJ’s finding that the OPM properly removed Grayton from Federal service.” (p. 7) The court specifically found that question 23f was not ambiguous or unduly complex. (p. 8)

The upshot is that Grayton cannot even apply for a federal position until after October 15, 2012.

Grayton10-3161

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

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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.

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