Sohail Khan v. Department of Homeland Security
Background
- Appellant Sohail Khan was appointed as a Customs and Border Protection Officer in 2005 and, in April 2015, was proposed for removal on a single falsification charge supported by 15 specifications alleging misrepresentations about his background and identity.
- Khan stipulated to specifications 12–14 (related to his periodic background reinvestigation): falsely claiming he rented a townhouse owned by “Sohail Mohammad,” denying ownership of real property, and submitting a fabricated rental agreement and a friend posing as his landlord.
- He conceded nexus between the misconduct and agency interests but contested procedural due process and the reasonableness of removal as a penalty.
- The deciding official sustained removal; the administrative judge sustained the removal based on the stipulated specifications and rejected Khan’s due process and penalty challenges.
- On petition for review, the Board denied relief, holding (1) Khan received adequate notice and there was no new and material ex parte information that violated Ward/Stone principles, and (2) the agency’s selection of removal was within tolerable limits of reasonableness under Douglas.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Notice of charge / Due process | Khan: notice was insufficient; agency treated him as an imposter rather than someone with two identities, causing unfair surprise | Agency: proposal letter and specifications detailed use of multiple identities and conduct; Khan had full opportunity to respond | Held: Notice was sufficient; Khan was not surprised and had a full and fair opportunity to defend himself |
| Ex parte / new and material information (Ward/Stone) | Khan: deciding official relied on statements that she could not confirm his identity — a new/material ex parte characterization | Agency: any doubt about identity was inherent in the charged misconduct and disclosed in the proposal | Held: No Ward/Stone violation; characterization of identity issues was cumulative/within charge and not new material ex parte information |
| Penalty reasonableness / Douglas analysis | Khan: agency improperly assessed Douglas factors and Board should independently reassess penalty | Agency: removal is within agency discretion; Board should defer unless penalty is unreasonable | Held: Board deferred to agency; it found the deciding official reasonably considered Douglas factors (trust/confidence, potential agency notoriety, nature/seriousness) and removal was within tolerable limits |
Key Cases Cited
- Ward v. U.S. Postal Serv., 634 F.3d 1274 (Fed. Cir. 2011) (deciding-official reliance on new, material ex parte information can violate due process)
- Stone v. Fed. Deposit Ins. Corp., 179 F.3d 1368 (Fed. Cir. 1999) (factors for determining whether ex parte communication is new and material)
- Douglas v. Veterans Admin., 5 M.S.P.R. 280 (1981) (articulating factors for penalty assessment)
- Mason v. Dep’t of the Navy, 70 M.S.P.R. 584 (1996) (notice specificity and prejudicial surprise in due process analysis)