Van Le v. Department of Homeland Security ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VAN LE, DOCKET NUMBER
Appellant, SF-0752-16-0306-I-1
v.
DEPARTMENT OF HOMELAND DATE: December 16, 2016
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Henry E. Leinen, Pacific Grove, California, for the appellant.
Brian P. Beddingfield and Kenneth Sogabe, San Francisco, California, for
the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only when:
the initial decision contains erroneous findings of material fact; the initial
decision is based on an erroneous interpretation of statute or regulation or the
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
¶2 The agency removed the appellant from the GS-12 Customs and Border
Protection (CBP) Officer position based on the following charges: (1) lack of
candor; (2) conduct unbecoming; (3) failure to follow leave policy; and
(4) misuse of official badge. Initial Appeal File (IAF), Tab 4, Subtabs 4a, 4b, 4g.
¶3 Regarding charge (1), the agency alleged that the appellant: (1) in 2006,
failed to disclose on an Electronic Questionnaire for Investigations Processing
(e-QIP), in response to the question whether he had ever been charged with or
convicted of a firearms or explosives offense, that, in 1992, he was charged with
Criminal Possession of a Weapon in the Third Degree under New York Penal
Law § 265.02; (2) in 2006, in response to a Background Investigator’s question
whether he had ever been arrested, failed to disclose his 1992 firearm arrest; and
(3) in 2012, in response to a Background Investigator’s question whether he had
ever been charged, investigated, or had allegations made against him by any
entity in relation to the improper use, discharge, display, or sto rage of a firearm,
he failed to disclose his charge of Criminal Possession of a Weapon in the Third
Degree, stemming from his 1992 arrest. IAF, Tab 4, Subtab 4g.
¶4 Regarding charge (2), the agency specified the following: on dates
unknown, the appellant deposited approximately $80,000 in increments under
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$10,000 to avoid the requirement that banks report any deposits over $10,000;
and in 2009, he served as a strawman (a person to whom title to property is
transferred for the sole purpose of concealing the true owner) for the purchase of
a house located in Weymouth, Massachusetts, for his brother-in-law’s sister in
violation of 18 U.S.C. § 1344. 2 IAF, Tab 4, Subtab 4g.
¶5 Regarding charge (3), the agency specified that the appellant used 72 to
80 hours of military leave to go to Vietnam for pleasure and, on 4 occasions, took
sick leave on the day of his return from his visit to Vietnam when he had no
personal medical or other need that would justify use of sick leave. Id.¶6 Regarding charge (4), the agency specified the following: on or about
June 16, 2014, while the appellant was not on duty, he used his badge to facilitate
his travel on military orders; and on April 20, 2014, while he was not on duty, the
appellant used his badge to meet his brother-in-law. Id.¶7 The appellant appealed the agency action. IAF, Tab 1. He explained that in
1992, a weapon was found in his automobile during a border search by CBP’s
predecessor agency, the U.S. Customs Service, as he returned to the United States
from Canada through New York. The appellant explained that the U.S. Customs
Service referred the matter to the local state law enforcement agency. He argues
that his responses to the Background Investigator’s questions in 2006 and 2012
did not amount to lack of candor about the 1992 incident because: the alleged
firearm arrest occurred more than 7 years prior to his responses and many
questions on the e-QIP asked for information about occurrences within the past
2
Under 18 U.S.C. § 1344,
Whoever knowingly executes, or attempts to execute a scheme or artifice —
(1) to defraud a financial institution; or
(2) to obtain any of the moneys, funds, credits, assets, securities, or other property
owned by, or under the custody or control of, a financial institution, by means of
false or fraudulent pretenses, representations, or promises;
shall be fined not more than 1,000,000 or imprisoned not more than 30 years, or
both.
4
7 years; and his infraction amounted to a petty offense—a violation of
administrative regulation—and not a criminal offense. He also argues that that he
had never been charged with an offense about the manner of his bank deposits.
Additionally, he asserts that he did not violate the agency’s leave policy, and,
regarding the misuse of leave charge, he contends that the charge constitutes a
violation of the Uniformed Services Employment and Reemployment Rights Act
of 1994 (codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA). Finally,
the appellant admitted responsibility to misusing his official badge, but contends
that he should not be removed for that offense alone.
¶8 Based on the record, including the testimony at the hearing, the
administrative judge found that the agency proved charge (1), one specification of
charge (2), and charge (4). IAF, Tab 39, Initial Decision (ID) at 3-15. The
administrative judge did not sustain the specification of charge (2) that the
appellant acted as a straw man for the purchase of property in Massachusetts
because the agency failed to prove the elements of the criminal charge of a
violation of 18 U.S.C. § 1344, as charged. Nonetheless, she found the agency
proved the charge because it proved one specification of the charge. The
administrative judge did not address charge (3) because the agency withdrew it
prior to the hearing. IAF, Tab 4. 3 She also found that the appellant failed to
establish a due process violation or harmful procedural error. ID at 15 -17.
Notwithstanding that the agency withdrew charge (3), and that the appellant
alleged a USERRA violation only regarding that charge, the administrative judge
found that the appellant failed to prove that his military service was a substantial
or motivating factor in the decision to remove him. ID at 17-18. Finally, the
administrative judge found nexus between the misconduct and the efficiency of
3
The administrative judge docketed a separate appeal for charge (3) because it was the
only charge that the appellant alleged violated his rights under USERRA. See Le v.
Department of Homeland Security, MSPB Docket No. SF-4324-16-0454-I-1.
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the service and that the removal penalty was within the bounds of reasonableness
for the proven charges. ID at 18-22.
¶9 In his petition for review, the appellant contends that the agency failed to
prove that his omitting his arrest on gun charges in New York in 1992 was done
knowingly. Petition for Review (PFR) File, Tab 1. He argues that the U.S.
Customs Service did not treat the incident as an arrest because it was not entered
into the Customs Seized Asset Control and Tracking System (SECATS). He also
argues, as he did below, that most of the pages of the e-QIP that he completed in
2006 contain the caveat “in the past seven (7) years” and only the page asking
about arrests and gun violations does not contain that caveat. The appellant
argues that he applied the caveat when answering on the form, but that he
candidly answered when he was questioned about his response in 2015. He
contends that he was unaware that he was charged with a firearm offense in 1992.
The appellant also contends that the agency’s charge, although labeled lack of
candor, was actually a charge of falsification.
¶10 As to charge (2), the appellant contends that the agency failed to prove that
any deposits were made to any bank accounts. He admits that he made the
deposits, but denies that he was structuring the deposits to amounts less than
$10,000.
¶11 As to charge (4), the appellant contends that the agency failed to prove that
employees while off duty are prohibited from using th e employee-only entry at
the San Francisco International Airport (SFO). He asserts that he bypassed the
line to check identification, but did not bypass security. He st ates that the policy
regarding use of his badge at the SFO is in question. He notes that the
administrative judge issued a subpoena duces tecum for the policy, and when the
agency did not respond, he moved for enforcement; however, the administrative
judge denied the motion. He contends that this policy is important evidence
because the administrative judge improperly found that the Security Identification
Display Area (SIDA) badge also contained a CBP sticker. Thus, he only used the
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SIDA badge to bypass certain lines in the SFO. He also contends that the
administrative judge improperly construed charge (4) as misuse of Government
property.
DISCUSSION OF ARGUMENTS ON REVIEW
¶12 Lack of candor “is a broader and more flexible concept” than falsification.
Ludlum v. Department of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002).
However, although lack of candor does not require an affirmative
misrepresentation, it involves an element of deception. Id. at 1284-85. An
agency alleging lack of candor must prove the following elements: (1) that the
employee gave incorrect or incomplete information; and (2) that he did so
knowingly. Fargnoli v. Department of Commerce, 123 M.S.P.R. 330, ¶ 17
(2016).
¶13 Contrary to the appellant’s assertion on petition for review, his arrest in
1992 was entered into SEACATS. IAF, Tab 4 at 138-45. As the administrative
judge found, SEACATS records show that the appellant was arrested after
U.S. Customs Service inspectors found a loaded Glock 17 automatic handgun for
which the appellant claimed ownership and he was arrested late in the evening of
August 12, 1992. ID at 5. As she also found, the clear instructions on the e-QIP
asked if the appellant had “ever” been charged with a firearms offense, making it
clear that this question was not limited to offenses within the preceding 7 years.
The appellant’s assertion that he was misled by the fact that other questions on
the e-QIP asked for information for only the 7 years prior to completing the form
is unavailing.
¶14 The administrative judge addressed the appellant’s assertion that he did not
know that he had been charged with a firearms offense because he was fined and
the court record was sealed. The administrative judge found that the appellant’s
assertion was not credible because he admitted that the U.S. Customs Service
Inspector told the appellant he was in trouble because of the gun, he was
7
handcuffed, placed into a police vehicle, taken to court where he appeared before
a judge, and was ultimately convicted of an infraction. Additionally, sh e found
that the appellant made multiple inconsistent statements, he was evasive and
ambiguous, and his responses were ever-shifting. ID at 8. The Board must defer
to an administrative judge’s credibility determinations when they are based,
explicitly or implicitly, on observing the demeanor of witnesses testifying at a
hearing; the Board may overturn such determinations only when it has
“sufficiently sound” reasons for doing so. Haebe v. Department of Justice,
288 F.3d 1288, 1301 (Fed. Cir. 2002) . We find no “sufficiently sound” reasons to
overturn the administrative judge’s credibility determination. The appellant’s
assertion in his petition for review that the agency failed to prove that his failure
to report his arrest on firearms charges in 1992 was knowing is unavailing.
¶15 To sustain a falsification charge, an agency must prove by preponderant
evidence that the appellant knowingly supplied incorrect information with the
intention of defrauding, , or misleading the agency. Seas v. U.S. Postal Service,
73 M.S.P.R. 422, 427 (1997). Here, the agency’s charge is that the appellant
failed to disclose information, not that he supplied incorrect inform ation. The
agency repeated in each of the specifications of charge (1) that the appellant’s
misconduct was that he “failed to disclose” information that he should have
disclosed in response to the questions that he was asked. IAF, Tab 4 at 61.
Contrary to the appellant’s assertion, the agency did not charge the appellant with
falsification.
¶16 To prove a charge of conduct unbecoming a Federal employee, an agency is
required to demonstrate that the appellant engaged in the underlying conduct
alleged in support of the broad label and that the conduct was improper,
unsuitable, or detracted from his character or reputation. See Social Security
Administration v. Long, 113 M.S.P.R. 190, ¶ 42 (2010). Here, the appellant
admitted in his affidavit that he hid $80,000 in his basement and that he would
from time to time deposit $8,000, $9,000, or $7,000 to try to avoid the forms that
8
are filed by the teller, forms that ultimately go to the Internal Revenue Service.
IAF, Tab 5 at 152. As the administrative judge found, the appellant admitted that
he had knowingly structured cash deposits into a financial institution in violation
of 31 U.S.C. § 5324, which is a criminal statute regarding structuring deposits to
avoid the required reporting of transactions that are $10,000 or more. ID at 11.
The administrative judge found that the appellant’s admission established that his
conduct was both improper and unsuitable for a Federal employee, especially a
CBP Officer whose role is to enforce similar Federal laws. Under the
circumstances, the appellant’s admission that he made the deposits as charged is
sufficient to prove the charge, notwithstanding that the agency did not submit
bank records of the deposits. The appellant’s assertion that the agen cy failed to
prove the charge of conduct unbecoming is unavailing.
¶17 As noted, the agency charged the appellant with using his SIDA badge
while he was off duty to facilitate his travel on military orders and , on another
occasion, to meet his brother-in-law at the airport. In his hearing testimony, the
appellant admitted that he used his SIDA badge for these purposes. The
administrative judge noted that the agency did not show that SFO policy prohibits
use of the SIDA badge as the appellant did. ID at 14. She found, however, that
the SIDA badge is issued by the SFO, but has on it a CBP sticker that is
controlled by the agency. She found that the appellant’s use of the CBP
identification violated the agency’s Standards of Conduct provision that
employees will not use any CBP identification, or other form of identification
associated with their employment, in a manner that may reasonably give the
perception that they are using the identification for personal benefit. IAF, Tab 6
at 115.
¶18 In his petition for review, the appellant asserts that the administrative judge
erred in finding that his SIDA badge contains a CBP sticker. He asserts that the
CBP sticker is affixed only to SIDA badges possessed by civilians who require
entry into the airport’s Federal inspection station. With his petition, he submits
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an application for an identification card that he asserts shows that CBP stickers
are issued only to civilians.
¶19 The appellant’s submission on petition for review is new evidence. Under
5 C.F.R. § 1201.115, the Board will not consider evidence submitted for the first
time with the petition for review absent a showing that it was unavailable before
the record was closed despite the party’s due diligence. Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980). The Board will not grant a petition for
review based on new evidence absent a showing that it is of sufficient weight to
warrant an outcome different from that of the initial decision . Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980). The appellant has not shown that
the application for an identification card was unavailable prior to the close of the
record below and so we need not consider it on that basis.
¶20 In any event, the application is insufficient to rebut the testimony that the
appellant’s SIDA badge contained a CBP sticker. Further, however, assuming
without finding that the appellant’s SIDA badge did not contain a CBP sticker,
the agency policy is broadly worded to prohibit employees from using any CBP
identification, or other form of identification associated with their employment,
in a manner that may reasonably give the perception that they are using the
identification for personal benefit. Here, the SIDA badge was associated with the
appellant’s employment, and his use of it for personal benefit violated the
agency’s Standards of Conduct. To the extent that the administrative judge may
have erred in finding that the appellant’s SIDA badge contained a CBP
identification, her error was harmless and did not affect the appellant’s
substantive rights. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282
(1984).
¶21 Also, the appellant asserts that the administrative judge erred in denying his
motion to enforce the subpoena duces tecum that sought records regarding SFO’s
SIDA badge training syllabus. IAF, Tabs 34, 36. The appellant asserts that the
training syllabus would have shown that he did not improperly use the SIDA
10
badge. However, even if the appellant could have shown that his use of the SIDA
badge was not an SFO policy violation, the agency established that its use for
personal benefit violated the agency’s Standards of Conduct. Consequently, the
administrative judge’s denial of the appellant’s motion to enforce the subpoena
duces tecum did not harm the appellant’s substantive rights. See Panter,
22 M.S.P.R.at 282.
¶22 As the appellant asserts, the administrative judge charact erized charge (4)
as misuse of Government property. The agency did not charge the appellant with
that offense. Rather, the agency charged the appellant with misuse of an official
badge. IAF, Tab 4 at 62. To the extent that the administrative judge erred in her
characterization of charge (4), her error did not harm the appellant’s substantive
rights because the agency proved misuse of the SIDA badge was a violation of the
agency’s Standards of Conduct. See Panter, 22 M.S.P.R. at 282. Thus, the
appellant’s assertions in his petition for review regarding charge (4) are
unavailing.
¶23 In his petition, the appellant does not allege error in the administrative
judge’s findings that he failed to prove his affirmative defenses of due process
violation and harmful procedural error and that the agency proved that the
removal penalty was within the bounds of reasonableness. We find no basis to
disturb those findings. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06
(1997) (finding no reason to disturb the administrative judge's findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health & Human Services,
33 M.S.P.R. 357, 359 (1987) (same). The administrative judge properly sustained
the agency’s removal action.
¶24 Accordingly, we affirm the initial decision.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
U.S. Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline m ust be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.