A Treasury Intelligence Research Specialist with Treasury’s FinCEN (Financial Crimes Enforcement Network) worked in the Intelligence Division until his removal. (Erb v Department of the Treasury, CAFC No. 2021-1756 (nonprecedential), 1/24/2024).
Following an investigation by the Treasury Inspector General (IG), Mr. Erb was charged with multiple instances of submitting false timecards. The IG found several instances where Erb submitted a validated timecard reporting both in-office and remote work hours with little or no evidence that he had actually worked during the reported hours. He never accessed a FinCEN facility during the supposed in-office work hours he reported. Further, when he reported he was teleworking the IG found no login records to reflect that he was. (Opinion p. 3) The instances uncovered and reported on by the IG led to a charge of “falsification of a government record,” supported by eleven specifications. (p. 4)
In proposing Erb’s removal, Treasury included a second charge of “failure to follow supervisory instruction” stemming from an incident where Erb was assigned the role of acting director for two days but relayed the assignment to a coworker, left the office without approval, all without informing or getting the approval of the supervisor. (p. 4)
The agency found the failure to follow instructions charge was supported, and 10 of the falsification specifications were proved, sustaining that charge. Mr. Erb was removed and unsuccessfully appealed to the Merit Systems Protection Board (MSPB). The MSPB law judge, after a hearing in which Erb testified, concluded that his testimony was not “direct or straightforward, … contained improbabilities,” and did not synch with the testimony he had given in his deposition. On the other hand, the judge found that the agency witnesses gave “clear, direct, straightforward, and consistent” testimony; he gave “significant weight” to those witnessed and “very little weight” to Erb’s testimony. The MSPB sustained both charges and concluded that there was a “nexus” between the misconduct and the efficiency of the service. In short, the Board sustained Mr. Erb’s removal. (Pp. 5-6)
Mr Erb took his case to the federal appeals court. Among other things, he attacked the witness credibility decisions of the Board judge. The appeals court held that the Board’s credibility determinations were well supported and that Mr. Erb had not shown evidence to support his argument that the “credibility determinations were arbitrary.” (P. 7)
Next up was Erb’s argument that the agency failed to prove the falsification charge. The court pointed out that Erb had admitted that at least two of the timecard submissions were false. (P. 8). Further, the court concluded that the agency had proved two other specifications involved false timecard information, both on days when Erb reported he had teleworked when in fact he had not remotely logged into the network on either of those days, a requirement to justify a day of telework. (Pp. 8-9)
As to Erb’s argument that the agency was required to show intent to falsify, the court did “not find merit” to this challenge. As the court pointed out, MSPB found that Erb was repeatedly told to not submit inaccurate information on his timecards, demonstrated that he knew how to code them accurately, and could not explain away the errors he had made on at least four specifications. Thus, the MSPB decision that Erb intended to mislead the agency was supported by substantial evidence. (p. 9) The court sustained four specifications and determined that those four specifications were sufficient to sustain the falsification charge. (p. 10)
As for Erb’s argument that removal was too harsh and should not have been upheld by the MSPB, the appeals court made quick work of that argument: “We likewise find no abuse of discretion in the Board’s decision to affirm Treasury’s penalty.” (p. 11)
In short, this former federal employee remains out of a job.
