Van Le v. Department of Homeland Security
Background
- Appellant, a GS-12 CBP Officer, was removed by DHS based on four charges: lack of candor (failing to disclose a 1992 firearm charge), conduct unbecoming (structuring cash deposits), failure to follow leave policy (withdrawn before hearing), and misuse of official badge.
- The agency alleged the appellant failed to disclose a 1992 New York Criminal Possession of a Weapon (3rd degree) charge on a 2006 e-QIP and to background investigators in 2006 and 2012.
- For conduct unbecoming, the agency relied on the appellant’s admission he hid ~$80,000 in cash and made deposits under $10,000 to avoid reporting requirements (structuring).
- For badge misuse, the agency proved the appellant used an employee SIDA badge while off duty to expedite travel and to meet a relative at SFO; appellant admitted use but disputed policy applicability and subpoena enforcement.
- The administrative judge sustained lack of candor (charge 1), one specification of conduct unbecoming (charge 2), and misuse of badge (charge 4); charge 3 was withdrawn. The judge found nexus to the efficiency of the service and that removal was reasonable. The Board denied review and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant knowingly omitted 1992 firearm charge (lack of candor) | Le: e-QIP pages referenced 7‑year caveat; he was unaware/treated incident as petty; not knowingly deceptive | Agency: SEACATS and testimony show arrest and charge; e‑QIP asked whether he had "ever" been charged | Sustained: omission was knowing; judge’s credibility findings upheld |
| Whether appellant’s structured deposits proved conduct unbecoming | Le: denies structuring intent; admits deposits but not illegal purpose | Agency: appellant admitted hiding cash and making sub‑$10,000 deposits to avoid reporting; admission establishes violation | Sustained: appellant’s admission sufficient to prove structuring and misconduct |
| Whether off‑duty use of SIDA badge was prohibited and constituted misuse | Le: SFO policy allegedly allows such SIDA badge use; CBP sticker not on his badge; subpoenaed policy withheld | Agency: SIDA badge bore CBP sticker or otherwise was associated with CBP ID; Standards of Conduct bar using agency ID for personal benefit | Sustained: misuse proven; even if SIDA lacked CBP sticker, using employment‑linked ID for personal benefit violated Standards of Conduct |
| Whether removal violated due process/USERRA or penalty was unreasonable | Le: asserted USERRA and procedural errors related to charge 3 and subpoena; argued badge misuse alone insufficient for removal | Agency: process and penalty were proper; military service was not a motivating factor | Sustained: no due process or USERRA violation proven; removal penalty within bounds of reasonableness |
Key Cases Cited
- Ludlum v. Department of Justice, 278 F.3d 1280 (Fed. Cir. 2002) (lack of candor is broader than falsification and involves deception)
- Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir. 2002) (deference to ALJ credibility findings based on demeanor)
- Fargnoli v. Department of Commerce, 123 M.S.P.R. 330 (MSPB 2016) (elements to prove lack of candor)
- Seas v. U.S. Postal Service, 73 M.S.P.R. 422 (MSPB 1997) (elements of falsification differ from omission)
- Panter v. Department of the Air Force, 22 M.S.P.R. 281 (MSPB 1984) (harmless error doctrine for nonprejudicial procedural rulings)