Recardo Terry v. Department of Agriculture

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RECARDO TERRY,
Petitioner
v.
DEPARTMENT OF AGRICULTURE,
Respondent
______________________
2020-1604
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-19-0453-I-1.
______________________
Decided: April 8, 2021
______________________
DAVID BRANCH, Law Office of David A. Branch, Wash-
ington, DC, for petitioner.
EVAN WISSER, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for respondent. Also represented by BRIAN M.
BOYNTON, MATTHEW JUDE CARHART, ALLISON KIDD-
MILLER, ROBERT EDWARD KIRSCHMAN, JR.
______________________
Case: 20-1604 Document: 52 Page: 1 Filed: 04/08/2021

-- 1 of 9 --

TERRY v. DEPARTMENT OF AGRICULTURE 2
Before PROST, Chief Judge, BRYSON and REYNA, Circuit
Judges.
PER C URIAM.
Petitioner Recardo Terry appeals from a decision of the
Merit Systems Protection Board upholding his removal
from his position as an Information Technology Specialist
with the U.S. Department of Agriculture (“USDA”). We af-
firm.
I
Mr. Terry was appointed to his position with the USDA
on November 30, 2014. As an Information Technology Spe-
cialist, he had access to sensitive information. The agency
accordingly classified his position as requiring a high de-
gree of trustworthiness.
The Office of Personnel Management (“OPM”) com-
pleted its background investigation of Mr. Terry on Novem-
ber 9, 2015, and forwarded its investigation report to the
USDA for adjudication. The background report contained
several areas of concern: a termination by a former em-
ployer that Mr. Terry had not disclosed at the time he was
hired by the USDA, and evidence of financial irresponsibil-
ity.
The Personnel and Document Security Division of the
USDA reviewed the background investigation report in
early 2018. In the course of assessing the issue of financial
responsibility, a USDA personnel security specialist noted
that Mr. Terry had gone through bankruptcy in 2009 and
that OPM’s investigation had identified twelve unpaid
debts, of which nine had been sent for collection and three
had been charged off as uncollectable, see J.A. 186, 195. On
April 24, 2018, the personnel security specialist sent a let-
ter to Mr. Terry regarding those delinquent accounts, re-
questing that he respond to the letter within 30 days. J.A.
186. Mr. Terry did not respond to the letter, nor did he
Case: 20-1604 Document: 52 Page: 2 Filed: 04/08/2021

-- 2 of 9 --

TERRY v. DEPARTMENT OF AGRICULTURE 3
respond to a follow-up email raising the same issue. J.A.
163, 193, 195.
On May 30, 2018, the Personnel Security Branch of the
USDA’s Personnel and Document Security Division deter-
mined, based on the issues of financial irresponsibility
raised by the investigation, that it could not make a favor-
able determination on Mr. Terry’s eligibility to occupy a po-
sition designated as a moderate risk public trust level
position. J.A. 196. The agency placed Mr. Terry on admin-
istrative leave as of June 15, 2018, due to the issues sur-
rounding his background investigation. J.A. 198.
In a letter sent to Mr. Terry on July 12, 2018, a USDA
personnel security specialist inquired about Mr. Terry’s
2011 termination by a prior employer, Dunbar Armor, and
his failure to disclose that termination on the forms he com-
pleted at the time of his appointment to his USDA position.
J.A. 201–02. The two forms in question were Form SF-85P,
which asked whether he had been fired from a job in the
past seven years, J.A. 582, and Form OF-306, which asked
whether he had been fired from any job for any reason dur-
ing the past five years, J.A. 503. Mr. Terry had answered
“no” to both questions. The July 12 letter noted that Mr.
Terry had initially received unemployment benefits follow-
ing his termination, but that those benefits had been re-
scinded when the state agency determined that he was
ineligible for them because he had been fired from his job.
See J.A. 202.
Mr. Terry submitted a written response to the July 12
letter. In his response, he stated that he did not believe he
had been fired by Dunbar Armor. He acknowledged that
he had repaid the unemployment benefits he had received,
but he asserted that he had returned the funds because he
believed he had been overpaid and was required to return
the overpayment. J.A. 204.
On July 31, 2018, the Personnel Security Branch of the
USDA’s Personnel and Document Security Division
Case: 20-1604 Document: 52 Page: 3 Filed: 04/08/2021

-- 3 of 9 --

TERRY v. DEPARTMENT OF AGRICULTURE 4
decided it could not make a favorable determination of Mr.
Terry’s eligibility to occupy a position of public trust. That
decision was based on Mr. Terry’s “numerous delinquent
financial liabilities that remain unresolved,” including a
judgment, and his “pattern of dishonesty and inability to
provide truthful and accurate information.” J.A. 206–07.
The Personnel Security Branch referred the matter to
USDA’s Employee and Labor Relations Branch for possible
adverse action.
Based on that determination, the USDA proposed to re-
move Mr. Terry for failure to satisfy a condition of his em-
ployment, i.e., receipt of a favorable adjudication of his
background investigation. J.A. 163–67. Mr. Terry chal-
lenged his proposed removal before the agency, contending
that the credit report referred to in the background inves-
tigation was out of date and that he had not been termi-
nated from his prior employment. J.A. 128–32. After
considering his response, USDA removed Mr. Terry for fail-
ure to satisfy a condition of his employment, which re-
quired that he obtain a favorable adjudication of his
background investigation. J.A. 39–43.
On appeal to the Merit Systems Protection Board, Mr.
Terry asserted that his history of unpaid debts did not sup-
port the agency’s conclusion that he was financially irre-
sponsible. He also denied that he was aware that he had
been terminated by his former employer, Dunbar Armor.
The administrative judge who was assigned to the case
found against Mr. Terry on both grounds. Terry v. Dep’t of
Agric., No. DC-0752-19-0453-I-1, 2019 WL 6870313
(M.S.P.B. Dec. 12, 2019). The administrative judge found
that Mr. Terry had several unpaid debts on his credit rec-
ord. Mr. Terry had paid off two of those debts in 2016, the
administrative judge found, but only after they were put
into collection and only because he realized those debts
would affect his ability to maintain his employment. The
administrative judge did not credit Mr. Terry’s assertion
Case: 20-1604 Document: 52 Page: 4 Filed: 04/08/2021

-- 4 of 9 --

TERRY v. DEPARTMENT OF AGRICULTURE 5
that he did not believe he owed money to those creditors
and that he resolved those debts as soon as he became
aware of them.
As for two of the debts that had been charged off as un-
collectable, Mr. Terry testified that those debts were not
his, but were generated following an incident of identity
theft. The administrative judge did not credit Mr. Terry’s
testimony with respect to those debts.
As for Mr. Terry’s failure to disclose that he had been
fired by Dunbar Armor in 2011, the administrative judge
stated that she did not believe Mr. Terry’s testimony that
he was unaware that the company had fired him.
Because a favorably adjudicated background investiga-
tion was a condition of Mr. Terry’s employment, the admin-
istrative judge found that there was a nexus between Mr.
Terry’s conduct and his employment and that the agency
was therefore justified in removing him.
Mr. Terry appealed directly from the decision of the ad-
ministrative judge to this court. We have jurisdiction pur-
suant to 5 U.S.C. § 7703, and we review the administrative
judge’s factual findings for substantial evidence. Parrott v.
Merit Sys. Prot. Bd., 519 F.3d 1328, 1334 (Fed. Cir. 2008).
II
In his petition for review to this court, Mr. Terry first
argues that substantial evidence does not support the two
grounds on which the USDA based its decision to remove
him: financial irresponsibility and a false representation
on two different employment forms that he had not been
fired from a job within the previous five or seven years. We
disagree.
With respect to the false representation, Mr. Terry tes-
tified that he did not believe he had been fired by Dunbar
Armor and that his denial that he had been fired by a prior
Case: 20-1604 Document: 52 Page: 5 Filed: 04/08/2021

-- 5 of 9 --

TERRY v. DEPARTMENT OF AGRICULTURE 6
employer thus did not constitute an intentional falsehood.
The administrative judge did not believe that testimony.
Besides finding Mr. Terry’s testimony not credible, the
administrative judge noted that other evidence of record
undermined Mr. Terry’s version of events. That evidence
included a written “notice of discharge” from Dunbar Ar-
mor, which Mr. Terry signed, and which stated that the
reason for his discharge was “failed to follow company pol-
icy[.] Sleeping while on duty.” J.A. 547.
The record also included a summons from the Mary-
land Department of Labor Licensing and Regulations,
which had sued Mr. Terry to recover unemployment bene-
fits that Mr. Terry unlawfully claimed after his termina-
tion. J.A. 703–06. The papers sent to Mr. Terry in
connection with that suit included a decision by a state
hearing examiner that noted that Mr. Terry was ineligible
for unemployment benefits because he had been “dis-
charged for gross misconduct.” J.A. 707–08. Mr. Terry did
not contest that finding, but repaid the unemployment ben-
efits that had previously been granted. In light of the ad-
ministrative judge’s credibility finding and the
documentary evidence indicating that Mr. Terry knew he
had been fired by Dunbar Armor, the USDA’s allegation of
a false representation was plainly supported by substantial
evidence.
With respect to the charge of financial irresponsibility,
the administrative judge noted that in response to his pro-
posed removal, Mr. Terry had sent the USDA a copy of his
credit report as of May 1, 2018, which showed that some of
the credit issues listed in his 2015 credit report had been
resolved in 2016. Based in part on Mr. Terry’s own testi-
mony, the administrative judge found that when Mr. Terry
was required to address his past debt as part of his back-
ground investigation, he made an effort to resolve his pend-
ing credit issues.
Case: 20-1604 Document: 52 Page: 6 Filed: 04/08/2021

-- 6 of 9 --

TERRY v. DEPARTMENT OF AGRICULTURE 7
The administrative judge noted that two of the delin-
quent accounts had been “charged off,” meaning that the
creditor had determined that the debt was unrecoverable
and had quit trying to collect it. As to those two accounts,
Mr. Terry testified that the debts in question were not his,
but had been generated as a result of an incident of identity
theft. The administrative judge noted, however, that Mr.
Terry offered no evidence that he reported an incident of
identity theft, nor had he ever disputed the creditors’
claims regarding the debts that were ultimately charged
off. The administrative judge found that Mr. Terry’s testi-
mony about the identity theft was not credible and that the
evidence supported the USDA’s conclusion that Mr. Terry
had failed to honor his just debts. In light of those findings,
the administrative judge determined Mr. Terry was finan-
cially irresponsible.
We uphold the administrative judge’s determination,
which was based in part on her finding that Mr. Terry’s
explanations of his unpaid debts lacked credibility. As we
have noted before, credibility determinations by adminis-
trative judges in proceedings before the Merit Systems Pro-
tection Board are “virtually unreviewable” on appeal.
Sistek v. Dep’t of Veterans Affs., 955 F.3d 948, 953 n.1 (Fed.
Cir. 2020); King v. Dep’t of Health & Hum. Servs., 133 F.3d
1450, 1453 (Fed. Cir. 1998); Hambsch v. Dep’t of the Treas-
ury, 796 F.2d 430, 436 (Fed. Cir. 1986). That is particularly
true where, as here, the administrative judge’s credibility
assessment is corroborated by other evidence in the record.
See Hornseth v. Dep’t of the Navy, 916 F.3d 1369, 1375–76
(Fed. Cir. 2019); see also Hillen v. Dep’t of the Army, 35
M.S.P.R. 453, 458 (1987).
Mr. Terry’s second argument on appeal is that the de-
lay between when he was hired and when he was removed
was impermissibly long and that the charge against him
was so stale that it was barred by laches. Before the ad-
ministrative judge, Mr. Terry complained about the delay
between the completion of OPM’s investigation and
Case: 20-1604 Document: 52 Page: 7 Filed: 04/08/2021

-- 7 of 9 --

TERRY v. DEPARTMENT OF AGRICULTURE 8
USDA’s adjudication of the background investigation, but
he did not raise laches as an affirmative defense.
Despite Mr. Terry’s failure to raise the defense of
laches, the administrative judge stated that she was “trou-
bled by the delay.” Terry, 2019 WL 6870313. Nonetheless,
she found that the agency “adequately addressed the de-
lay,” as two witnesses from the agency’s Personnel and
Document Security Division testified that the three-year
delay was “not extraordinary” because of the “substantial
backlog of pending investigations [within the USDA] which
has resulted in the delay.” Id.
Mr. Terry argues that he suffers from memory loss and
PTSD due to injuries incurred while he was in military ser-
vice. For that reason, he contends, the agency’s unreason-
able delay in proposing his removal prejudiced him, as he
had no recollection of certain matters that occurred several
years earlier.
The administrative judge found that the delay was not
so lengthy as to prejudice Mr. Terry. Id. at n.1. Mr. Terry’s
argument to the contrary is not convincing. While a delay
such as the one in this case might be problematic if the case
turned on small details that could reasonably slip from an
employee’s memory over a period of that length, it is not
reasonable to suppose that such a delay would lead to a loss
of memory regarding matters such as whether the person
had been fired from a job. What is more, Mr. Terry’s de-
fense with regard to the debts reflected in his credit report
did not turn on a lack of memory; he asserted instead that
he had paid off several of the debts and that others were
not his, but were attributable to identity theft. He has not
suggested how his defenses to the debt-related allegations
would have been strengthened if his proposed removal had
occurred earlier than it did.
We therefore uphold the administrative judge’s deter-
mination that the agency properly removed Mr. Terry for
Case: 20-1604 Document: 52 Page: 8 Filed: 04/08/2021

-- 8 of 9 --

TERRY v. DEPARTMENT OF AGRICULTURE 9
failing to obtain a favorably adjudicated background inves-
tigation, a requirement of his position.
AFFIRMED
Case: 20-1604 Document: 52 Page: 9 Filed: 04/08/2021

-- 9 of 9 --