Before Mayer, Chief Judge, Plager and Bryson, Circuit Judges.
Willie V. Ledbetter seeks review of the June 13, 1998 decision of the Merit Systems Protection Board, Docket No. BN0752980074-I-1, affirming the Department of Veteran Affairs' ("VA") removal of Ledbetter for falsification of official government documents with intent to defraud the government. We affirm.
Our review is limited to setting aside any action that is "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence." 5 U.S.C. § 7703(c) (1996).
"To sustain a charge of submitting false information on official government documents, the agency must prove by a preponderance of the evidence that the employee knowingly supplied wrong information, and that he did so with the intention of defrauding the agency." Naekel v. Department of Transp., 782 F.2d 975, 977 (Fed. Cir. 1986) (internal quotations omitted). The omission of the relevant criminal history from the Declaration for Federal Employment is not disputed. Ledbetter's intent to deceive the VA is a question of fact which we review under the substantial evidence standard. Jackson v. Veterans Admin., 768 F.2d 1325, 1329 (Fed. Cir. 1985). Intent to deceive may be proven directly or derived from circumstantial evidence. Kumferman v. Department of Navy, 785 F.2d 286, 290 (Fed. Cir. 1986). The board properly considered Ledbetter's failure to disclose his entire criminal history and gaps in his prior employment during his incarceration as circumstantial evidence of his intent to deceive the government. The board found Ledbetter's explanation for his incomplete disclosures implausible, a credibility determination that is virtually unreviewable on appeal. We therefore find the board's determination that Ledbetter intended to defraud the government to be supported by substantial evidence.
To sustain an adverse action, the VA must additionally show that the disciplinary action promotes the efficiency of the service, 5 U.S.C. § 7513(a) (1996), which includes showing that a nexus exists between the charged conduct and the efficiency of the service and that the penalty chosen is within the limits of reasonableness. Douglas v. Veterans Admin., 5 M.S.P.R. 280, 304-06 (1991). We have found that "[t]here are some offenses, such as . . . falsification of government records, which make a nexus between the forbidden conduct and the efficiency of the service obvious on the face of the facts." Gonzales v. Defense Logistics Agency, 772 F.2d 887, 889 (Fed. Cir. 1985) (internal quotations omitted). This is such a case.
Ledbetter challenges the reasonableness of the penalty. Penalty decisions are judgment calls best left to the discretion of the employing agency, and the presumption is that government officials have acted in good faith. Gonzales, 772 F.2d at 889. We will not disturb a penalty unless it exceeds the range of permissible punishment or is "so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion." Id. (quoting Villela v. Department of Air Force, 727 F.2d 1574, 1576 (Fed. Cir. 1984)). We have found the falsification of government documents a sufficiently serious offense to warrant removal. Id. Here, the board considered the length of Ledbetter's service, his disciplinary record, the length of his criminal record, and the recent nature and seriousness of his offenses in determining the removal to be reasonable. We find no abuse of discretion because the penalty was based on a responsible balancing of the relevant factors outlined in Douglas, 5 M.S.P.R. 280, as applied to the peculiar facts of this case. See DeWitt v. Department of Navy, 747 F.2d 1442, 1445 (Fed. Cir. 1984).