## Facts

- Kevin R. Kimm was a highly regarded criminal investigator with the Bureau of Alcohol, Tobacco and Firearms (ATF), an agency within the Department of the Treasury, and his duties required him to remain on call.
- ATF assigned Kimm a government-owned vehicle (GOV) so he could respond quickly to official needs.
- Treasury/ATF policy restricted GOV use to official purposes and allowed passengers only when their presence was essential to completing official business.
- In August 1992, Kimm’s wife experienced serious pregnancy-related medical complications and was placed on bed rest, leaving her unable to drive their son to and from daycare.
- During that emergency period, Kimm occasionally transported his son in the GOV so he could both address the family situation and remain available for duty.
- Kimm testified that he believed the agency tolerated minor deviations from strict GOV rules (such as incidental stops while on duty) and that, under the circumstances, his limited use fit within what he understood to be acceptable discretion.
- ATF charged Kimm with “willfully using a government-owned vehicle for other than official purposes,” relying on 31 U.S.C. § 1349(b), and imposed a 30-day suspension without pay.
- Kimm appealed to the Merit Systems Protection Board (MSPB).
- An MSPB administrative judge (AJ) credited Kimm’s testimony regarding his understanding and intent and concluded the agency failed to prove willful nonofficial use; the AJ ordered relief for Kimm.
- The full MSPB reversed the AJ and sustained the 30-day suspension.
- Kimm petitioned the United States Court of Appeals for the Federal Circuit for review of the MSPB’s final decision.

## Issues

1. Whether substantial evidence supported the MSPB’s finding that Kimm “willfully” used a government-owned vehicle for a nonofficial purpose under 31 U.S.C. § 1349(b).
2. Whether the MSPB could reject the AJ’s credited testimony and findings about Kimm’s knowledge and intent without an adequate explanation consistent with substantial-evidence review under 5 U.S.C. § 7703(c).

## Decision

- The Federal Circuit reversed the MSPB’s final decision sustaining Kimm’s 30-day suspension.
- The court held that the Board’s finding of willful nonofficial GOV use was not supported by substantial evidence on the record as a whole.
- The court found no record evidence that Kimm knew (or should have known) that transporting his son during the medical emergency would be treated as nonofficial use, or that Kimm acted with reckless disregard about whether the use was official.
- Because the willfulness element failed, the suspension could not stand; the Board’s decision was set aside.

## Legal Principles

- Under 5 U.S.C. § 7703(c), the Federal Circuit must set aside an MSPB decision that is arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, or unsupported by substantial evidence.
- “Willful” use of a government vehicle for other than official purposes under 31 U.S.C. § 1349(b) requires more than a technical rule violation; the agency must show, with record support, that the employee knew (or should have known) the use was nonofficial or acted with reckless disregard as to that question.
- When an AJ makes credibility-based findings after hearing testimony, the Board may disagree, but it must give a reasoned explanation for rejecting those findings; a conclusory reversal that disregards credited testimony can fail substantial-evidence review.
- Where agency rules and workplace practice leave room for employee judgment about what counts as mission-related vehicle use, willfulness cannot be inferred solely from the agency’s later characterization of the conduct as nonofficial.

## Conclusion

*Kimm v. Department of the Treasury* holds that the MSPB may not sustain discipline for “willful” nonofficial GOV use without substantial evidence that the employee had the required knowledge or reckless disregard, and that the Board must adequately explain any departure from an AJ’s credibility-based findings; lacking such evidence, the Federal Circuit reversed the Board and set aside Kimm’s suspension.


Kimm v. Department of the Treasury, 61 F.3d 888 (1995)