Andrew Ludlum v. Department of Justice

Citations: 278 F.3d 1280; 2002 U.S. App. LEXIS 1128; 2002 WL 104890Docket: 01-3093

Court: Court of Appeals for the Federal Circuit; January 28, 2002; Federal Appellate Court

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Andrew Ludlum, a special agent of the FBI, was removed from his position for lack of candor during an administrative inquiry, among other issues. The Merit Systems Protection Board upheld the lack of candor charge but reduced the penalty to a 120-day suspension. The incident began when Ludlum stopped a vehicle he suspected was stolen while driving an official Bureau vehicle, having his daughter as an unauthorized passenger. The driver of the stopped vehicle reported Ludlum to his supervisor.

An investigation was conducted by Supervisory Special Agents Liberatore and Bowe, during which Ludlum was interviewed. He stated he could not recall the number of times he had transported his daughter in a Bureau vehicle. When presented with a written statement based on the interview, Ludlum made a minor correction but did not indicate any uncertainty about the number of times he had transported his daughter. Instead, he claimed he had only done so on three occasions, asserting that other passengers were work-related.

Subsequently, Ludlum signed a second statement indicating he had reviewed records from his daughter's daycare, admitting he used a Bureau vehicle without authorization for multiple pickups. The court affirmed the Board's decision, maintaining the suspension as a suitable penalty for the misconduct.

Ludlum acknowledged in a statement that he initially omitted certain material facts during a previous interview due to concerns about potential repercussions. Upon reviewing records, he confirmed that he had used a Bureau vehicle on more than three occasions to transport his daughter, although he primarily recalled three specific emergency instances. He later detailed fourteen additional dates where he picked up or dropped off his daughter at a daycare, clarifying that some occurred while he was technically off duty, thus indicating more frequent use of Bureau resources than previously disclosed.

The Bureau found Ludlum guilty of several infractions, including an unauthorized traffic stop, transporting an unauthorized passenger, and lack of candor during the inquiry. His admission of picking up his daughter on fourteen occasions, contrasted with his earlier statement, raised significant concerns about his honesty and judgment, leading to his dismissal from the FBI.

Ludlum appealed his termination, with the Board focusing solely on the issue of his candor. During the hearing, the Administrative Judge determined that the agency needed to demonstrate that Ludlum had knowingly provided false information with the intent to deceive. After reviewing the evidence and testimonies, the judge concluded that the Bureau failed to establish that Ludlum intentionally withheld the truth, leading to the reversal of the Bureau's dismissal decision.

The Board overturned the administrative judge's initial decision, reducing the penalty to a 120-day suspension. It clarified that the relevant issue was a charge of "lack of candor," rather than falsification, which the Bureau was not required to prove. The parties agreed that the notice of proposed removal was "superseded," and the sole issue was the appellant's lack of candor. The Board noted that the case was closely contested but found sufficient evidence to support the lack of candor charge.

Key evidence included the appellant's April statement, which inaccurately suggested he only transported his daughter on three occasions, omitting any mention of other instances. In a subsequent May statement, he admitted to transporting her twelve to fourteen times, citing fear of repercussions as his reason for not disclosing this information earlier. The Board highlighted that the appellant's failure to fully disclose his uncertainty created a misleading impression.

Furthermore, the Board rejected the administrative judge's interpretation that a lack of candor charge necessitated proof of intent to deceive, differentiating between lack of candor and falsification. The Board referenced previous cases where lack of candor was sustained independently of falsification charges, establishing that lack of candor encompasses a broader range of misconduct.

Falsification requires an affirmative misrepresentation with intent to deceive, as established in Naekel v. Dep't of Transp. However, "lack of candor" is a broader concept that may involve failing to disclose information necessary to make a statement accurate, similar to the distinction in federal securities law between false statements and omissions of material facts. In this case, Mr. DeFeo, an Assistant Director at the Bureau, clarified that lack of candor refers to a failure to be forthright, including testifying truthfully. It encompasses various offenses, such as lying under oath or to a supervisor. Under the FBI Director's policy, lack of candor can lead to dismissal for failing to reply fully and truthfully.

While the Bureau’s regulations do not explicitly mention "lack of candor," the term is recognized within the Bureau as a shorthand for various situations requiring transparency. The Bureau's Manual emphasizes that employees must be frank and cooperative in administrative inquiries. The dissenting opinion suggests that intent to deceive must be proven for lack of candor charges, but the Board ruled that it can be established by demonstrating that an agent did not respond fully and truthfully.

In this case, the sole issue was whether Ludlum exhibited a lack of candor in his April 6, 1998, statement. The Board found substantial evidence supporting the conclusion that Ludlum was not fully candid, noting that his statement about picking up his daughter in a Bureau vehicle was ambiguous and suggested he may have transported her more than he disclosed.

Ludlum acknowledged in a May 8, 1998 statement that he had transported his daughter in a Bureau vehicle eleven times, with a potential two additional instances, during the period from February 1997 to February 1998. This admission differed from his earlier April 6 statement, wherein he only mentioned three incidents. He attributed the omission of additional instances to fear of complications and expressed uncertainty about prior occasions. Ludlum did not amend his April statement to reflect this uncertainty or the higher number of transports. Notably, he changed the term "unauthorization" to "unauthorized" before signing but did not clarify that his recollection was incomplete, thereby misleadingly implying only three occurrences. The significant discrepancy between the three instances acknowledged in April and the twelve to fourteen admitted in May suggested he was aware of the greater number. His explanation for the omission indicated a lack of candor. The Bureau requires high candor from its agents. The Board affirmed the Bureau's determination of lack of candor, despite dissent regarding the necessity of proving intent to mislead as part of such a charge. The majority opinion did not adhere to prior legal standards requiring intent to support a lack of candor charge.

The majority's analysis on whether intent is necessary for a lack of candor charge by the Bureau is inconsistent and unclear. It affirms the Board's conclusion that no intent is required, despite highlighting circumstantial evidence that could imply intent. The majority should clarify whether intent is indeed necessary and, if so, the level of intent required. A review of relevant cases, specifically Boyd and Friedrick, indicates that intent is essential for a lack of candor charge. In Boyd, the Board explicitly stated that intent to misrepresent is implicit in the charge, and evidence showed the appellant knowingly misrepresented information. Similarly, in Friedrick, the Board upheld a finding of lack of candor based on intentional misrepresentation. The majority's reliance on the FBI's Manual is inadequate, as it overlooks Mr. Ludlum's cooperation and frankness during inquiries, which supports a conclusion favoring him. The existing precedent and the language of the manual suggest that a finding of intent is necessary to uphold a lack of candor charge.

The majority opinion asserts that a lack of candor charge involves an element of deception but does not require a separate showing of intent, unlike falsification. This creates confusion by distinguishing between "elements" and "separate elements," leading to a problematic analysis where the majority concludes that either all unintentional misstatements suffice for a lack of candor charge or that lack of candor equates to falsification. The majority's position demands deception without intent, contradicting the definition of deception. In Mr. Ludlum's case, the Board found no intent to deceive and recognized his credibility regarding discrepancies in his statement. A proposed remedy for addressing Mr. Ludlum's actions would involve reversing the Board's misapplication of the lack of candor standard and remanding for the correct application, which requires at least some degree of intent. The author expresses dissent based on these interpretations and implications.