Van Le v. Department of Homeland Security
Background
- Appellant, a GS-12 CBP Officer, was removed by DHS for: lack of candor (failing to disclose a 1992 firearms charge), conduct unbecoming (structuring cash deposits), misuse of an official badge, and failure to follow leave policy (withdrawn before hearing).
- The 1992 incident involved CBP predecessor inspectors finding a loaded Glock during a border search; SEACATS records and court proceedings showed an arrest/conviction/infraction.
- On e-QIP (2006) and during background investigations (2006, 2012), appellant did not disclose the 1992 firearms charge; he later gave inconsistent and evasive statements about knowing he was charged.
- Appellant admitted hiding ~$80,000 in cash and making repeated sub-$10,000 deposits; he claimed these were not structuring and denied criminal intent.
- Appellant admitted using a SIDA airport badge while off duty to expedite travel/meet relatives; he challenged whether the badge bore CBP identification and sought SFO policy records (subpoena enforcement denied).
- Administrative judge sustained lack of candor, one specification of conduct unbecoming (structuring), and misuse of badge; found removal penalty reasonable; appellant petitioned for review and contested knowledge, proof, and policy interpretation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant knowingly omitted the 1992 firearms charge (lack of candor) | Le: e-QIP pages referenced 7‑year window; he was unaware or misled; not knowing he was charged | Agency: SEACATS record, investigation, and testimony show arrest/charge; e-QIP asked if he had "ever" been charged | Sustained — omission was knowing; credibility findings deferred to AJ; e‑QIP not limited to 7 years |
| Whether admitting structured deposits (conduct unbecoming/structuring) was proven without bank records | Le: denies structuring intent despite admitting deposits | Agency: appellant admitted hiding cash and making sub‑$10k deposits to avoid reporting; admission sufficient | Sustained — appellant’s admission established structuring and unsuitability for CBP Officer |
| Whether off‑duty use of SIDA badge constituted misuse of an official badge | Le: SIDA badge use permitted/off‑duty policy ambiguous; CBP sticker not on his badge; subpoenaed SFO policy relevant | Agency: badge was associated with CBP (CBP sticker/control); Standards of Conduct bar using employment ID for personal benefit | Sustained — appellant admitted use; even if SFO policy ambiguous, use violated CBP Standards of Conduct; AJ’s error on sticker was harmless |
| Whether removal violated USERRA/due process or was an unreasonable penalty | Le: alleged USERRA and procedural harms; argued badge misuse alone shouldn’t merit removal | Agency: withdrew USERRA‑related charge; showed nexus to efficiency and reasonableness of removal | Sustained — AJ found no USERRA motivating factor, no harmful procedural error, and penalty within bounds |
Key Cases Cited
- Ludlum v. Department of Justice, 278 F.3d 1280 (Fed. Cir.) (lack of candor broader than falsification)
- Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir.) (deference to ALJ credibility findings based on demeanor)
- Fargnoli v. Department of Commerce, 123 M.S.P.R. 330 (M.S.P.B.) (elements of lack of candor)
- Seas v. U.S. Postal Service, 73 M.S.P.R. 422 (M.S.P.B.) (falsification requires knowing supply of incorrect info to mislead)
- Long v. Social Security Administration, 113 M.S.P.R. 190 (M.S.P.B.) (conduct unbecoming standard)
- Panter v. Department of the Air Force, 22 M.S.P.R. 281 (M.S.P.B.) (harmless error doctrine in agency proceedings)
- Crosby v. U.S. Postal Service, 74 M.S.P.R. 98 (M.S.P.B.) (upholding AJ findings when reasoned and supported)
- Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357 (M.S.P.B.) (same)