NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

LEE ALLBEE,

Petitioner

v.

DEPARTMENT OF HOMELAND SECURITY,

Respondent

______________________ 

2021-1608

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DA-0752-20-0238-I-1.

______________________ 

Decided: February 22, 2022

______________________ 

JENNIFER DUKE ISAACS, Melville Johnson PC, Atlanta, 

GA, for petitioner. 

 VIJAYA SURAMPUDI, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BRIAN M.

BOYNTON, MARTIN F. HOCKEY, JR., LOREN MISHA PREHEIM. 

 ______________________ 

Before LOURIE, SCHALL, and TARANTO, Circuit Judges.

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2 ALLBEE v. DHS

SCHALL, Circuit Judge. 

DECISION

Lee Allbee petitions for review of the final decision of 

the Merit Systems Protection Board (“Board”) that affirmed the action of U.S. Customs and Border Protection 

(“CBP” or “agency”) removing him from his position of 

GS-14 Supervisory Border Patrol Agent. Allbee v. Dep’t of 

Homeland Sec., No. DA-0752-20-0238-I-1, 2020 WL 

6448868 (M.S.P.B. Oct. 26, 2020), App. 1.1 We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). For the reasons 

set forth below, we affirm. 

DISCUSSION

I 

CBP, which is a component of the Department of 

Homeland Security, removed Mr. Allbee based upon three 

charges: submission of reimbursement claims for unauthorized travel expenses (25 specifications) (Charge 1); 

making unauthorized cash withdrawals on a government 

travel card (Charge 2); and failure to cooperate in an official investigation (Charge 3). App. 3. Mr. Allbee timely 

appealed his removal to the Board. Before the Board, the 

appeal was heard upon the administrative record without 

a hearing. In a decision dated October 26, 2020, the administrative judge (“AJ’) to whom the appeal was assigned 

affirmed the removal. App. 1. The AJ found that, although 

the agency had failed to prove Charges 2 and 3, it had 

proved 20 of the 25 specifications in Charge 1. App. 6–26. 

The AJ also found that the agency had demonstrated a 

nexus between Mr. Allbee’s misconduct and the efficiency 

of the service, App. 32, and that the penalty of removal was 

1 Our citations to “App.” refer to the Petitioner’s Corrected Appendix, filed Nov. 22, 2021 (Dkt. No. 48).

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ALLBEE v. DHS 3

reasonable, App. 32–36. The AJ’s initial decision became 

the final decision of the Board on November 30, 2020.

II

Our review of the Board’s decision is limited by statute. 

We must affirm a final decision of the Board unless it is 

“(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been 

followed; or (3) unsupported by substantial evidence.” 5 

U.S.C. § 7703(c); see also Hayes v. Dep’t of the Navy, 727 

F.2d 1535, 1537 (Fed. Cir. 1984). Substantial evidence 

“means such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion.” Consol. Edison Co. v. Nat’l Labor Rels. Bd., 305 U.S. 197, 229 (1938). 

III

Between July 27, 2014, and September 6, 2015, Mr. Allbee was on long-term temporary duty (“TDY”) status. App. 

2. In Charge 1, CBP alleged that, when Mr. Allbee submitted expense vouchers for the TDY period, he sought reimbursement for expenses that he was not allowed to claim 

under the pertinent regulations. App. 6–26. As noted, the 

AJ sustained 20 of the 25 specifications in Charge 1 and 

affirmed Mr. Allbee’s removal. On appeal, Mr. Allbee advances several claims of error. First, he argues that the AJ 

erred when she ruled, App. 4–5, that the agency did not 

have to prove that Mr. Allbee had fraudulent intent when 

he submitted the vouchers at issue in Charge 1. Allbee Br. 

16–21. Second, he claims that the AJ’s finding that the 

agency had proved 20 of the 25 specifications by a preponderance of the evidence, App. 6–26, is not supported by substantial evidence. Allbee Br. 21–34. Third, Mr. Allbee 

urges that, contrary to the AJ’s finding, App. 32, the agency 

failed to demonstrate a nexus between the misconduct alleged in Charge 1 and the efficiency of the service. Allbee 

Br. 34–35. And fourth, Mr. Allbee argues that the AJ erred 

in finding that the penalty of removal was reasonable. See

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4 ALLBEE v. DHS

App. 32–36; Allbee Br. 35–40. We address Mr. Allbee’s contentions in turn. 

IV 

In her initial decision the AJ pointed out that neither 

Charge 1 itself nor the individual specifications in the 

charge referred to a specific intent. App. 4. Charge 1 is 

titled “Submission of Reimbursement Claims for Unauthorized Travel Expenses,” and the charge does not refer to 

any intent on the part of Mr. Allbee. See App. 46–50. A 

charge such as this “does not turn on proof of intent.” Hamilton v. U.S. Postal Serv., 71 M.S.P.R. 547, 555–56 (1996) 

(holding that failure to follow instructions does not require 

proof of intent); see also Boyd v. Dep’t of Veterans Affairs, 

740 F. App’x 710, 713 (Fed. Cir. 2018) (“It is not necessary 

for the agency to prove that a failure to follow instructions 

was intentional.”).

Neither are we persuaded by Mr. Allbee’s argument 

that CBP failed to prove 20 of the 25 specifications in 

Charge 1. We have reviewed both the 20 specifications and 

the evidence of record in support of them. The AJ’s finding 

that the agency proved the specifications by a preponderance of the evidence is supported by substantial evidence.

Under 5 U.S.C. § 7513(a) an agency may remove an employee only for such cause as will promote the efficiency of 

the service. In that regard, the agency must prove there is 

a nexus between the articulated grounds for an adverse action and either the employee’s ability to accomplish his or 

her duties satisfactorily or some other legitimate government interest. Hoofman v. Dep’t of the Army, 118 M.S.P.R. 

532, 540 (2012), aff’d 526 F. App’x 982 (Fed. Cir. 2013). In 

this case, the AJ found that there was “a clear nexus between the sustained charge and the efficiency of the service.” App. 32. The AJ found that Mr. Allbee’s misconduct 

“occurred at work and involve[d] his violation of policies related to . . . his requests for reimbursement of travel expenses.” App. 32. We see no error in this finding. Mr. 

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ALLBEE v. DHS 5

Allbee’s sole argument with respect to the AJ’s nexus determination is that “he was removed approximately six (6) 

years after the alleged misconduct occurred and after his 

temporary assignment ended.” Allbee Br. 35. We agree 

with the government that this fact is not relevant in determining nexus. 

Turning to Mr. Allbee’s final argument, as far as penalty is concerned, we have stated that the Board’s “role in 

[assessing the penalty] is not to insist that the balance be 

struck precisely where the Board would choose to strike it 

if the Board were in the agency’s shoes in the first instance” 

but rather “to assure that the agency did conscientiously 

consider the relevant factors and did strike a responsible 

balance within tolerable limits of reasonableness.” Norris 

v. S.E.C., 675 F.3d 1349, 1355 (Fed. Cir. 2012) (citations 

omitted). In this case, the AJ found that the agency had 

considered the relevant factors set forth in Douglas v. Veterans Administration, 5 M.S.P.B. 313, 331–32 (1981), in determining whether the penalty imposed upon Mr. Allbee 

was reasonable. See App. 33–36. We have carefully considered Mr. Allbee’s arguments to the contrary. See Allbee 

Br. 36–40. None of them has persuaded us that, in imposing the penalty of removal, CBP abused its discretion. 

Finally, in addition to the arguments addressed above, 

we have considered several additional contentions raised 

by Mr. Allbee. We have determined that none of them warrant disturbing the Board’s final decision. 

CONCLUSION

For the foregoing reasons, we affirm the final decision 

of the Board affirming Mr. Allbee’s removal.

AFFIRMED

COSTS

No costs.

Case: 21-1608 Document: 67 Page: 5 Filed: 02/22/2022