NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

JANE SPHATT,

Petitioner

v.

DEPARTMENT OF HOMELAND SECURITY,

Respondent

______________________

2020-1451

______________________

Petition for review of the Merit Systems Protection 

Board in No. NY-0752-19-0146-I-1.

______________________

Decided: April 7, 2021

______________________

ALAN EDWARD WOLIN, Wolin & Wolin, Jericho, NY, for 

petitioner.

 TANYA KOENIG, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, for respondent. Also represented by JEFFREY B.

CLARK, ROBERT EDWARD KIRSCHMAN, JR., LOREN MISHA 

PREHEIM.

 ______________________

Before LOURIE, TARANTO, and STOLL, Circuit Judges.

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2 SPHATT v. DHS

TARANTO, Circuit Judge.

Jane Sphatt was removed from her position as an Immigration Officer at the Department of Homeland Security’s United States Citizenship and Immigration Services 

(the Agency) in April 2019 for misuse of her government 

position and government credentials, lack of candor, and 

unauthorized use of a government database. The Merit 

Systems Protection Board affirmed the Agency’s decision, 

finding all four charges supported by the evidence and the 

penalty of removal reasonable. J.A. 7–68; Sphatt v. Dep’t 

of Homeland Security, No. NY-0752-19-0146-I-1, 2020 WL 

71044 (M.S.P.B. Jan. 2, 2020). The Board also rejected Ms. 

Sphatt’s affirmative defenses, including that the removal 

was tainted by procedural defects and was based on conduct that occurred too long ago. We affirm.

I

Ms. Sphatt began working for the Office of Security and 

Integrity (OSI) within the Agency in 2002 and eventually 

became a Senior Immigration Services Officer. In March 

2016, the Agency received an internal complaint that, in 

May 2015, in connection with an immigration matter involving Ms. Sphatt’s close friend, Jing Pei Mao, and his 

wife Ghun Feng Gan, Ms. Sphatt had included her official 

job title and a photocopy of her government credentials 

when submitting an affidavit to attest to the bona-fide nature of Mr. Mao and Ms. Gan’s marriage. The complaint 

came from an Agency employee handling the immigration 

matter of Mr. Mao and Ms. Gan. The same employee also 

filed a second complaint after Ms. Sphatt, on March 17, 

2016, again included her official title and her credentials 

when submitting another affidavit in the same matter in 

support of Mr. Mao and Ms. Gan. In both documents, Ms. 

Sphatt also provided her government e-mail address and 

office phone number as preferred contact information for 

any further inquiries.

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SPHATT v. DHS 3

Following an internal investigation, on May 2, 2017, a 

Disciplinary Review Board of the OSI issued a Notice of 

Proposed Seven Day Suspension to Ms. Sphatt for misuse 

of her government position and misuse of government credentials. J.A. 239, 1057–63. On June 27, 2017, while Ms. 

Sphatt’s suspension notice was pending review, the Agency 

received a separate complaint stating that, during the internal investigation, Ms. Sphatt made certain representations that conflicted with information she provided in 

employment security paperwork. J.A. 417–25. The investigation into this new complaint unearthed thirteen occasions on which Ms. Sphatt used the Treasury Enforcement 

Communication System (TECS)—a secure government 

system that provides access to law enforcement databases 

and individuals’ personal information—to look for information about herself and her relatives. J.A. 407; see also

J.A. 626. On October 23, 2018, the Agency issued a Notice 

of Proposed Removal, which stated four charges: the two 

previous charges for misuse of government position and 

credentials, and additional charges for lack of candor and 

unauthorized use of TECS. J.A. 1040–56. 

On April 25, 2019, the deciding official agreed with the 

proposal to remove Ms. Sphatt. The official found in favor 

of the Agency on all four charges. In fact, the official found 

in favor of all specifications alleged in support of all the 

charges except for the charge of lack of candor, as to which 

the official ruled for the Agency on three of seven original 

specifications. J.A. 112–22. Ms. Sphatt appealed the decision to the Board on May 13, 2019.

The Board, in an Initial Decision rendered by a Board 

administrative judge, upheld the Agency’s removal decision. The Board found misuse of government position and 

credentials (treated as merged because they involved the 

same incidents, J.A. 15) based on all the circumstances surrounding Ms. Sphatt’s use of her government title and credential in her filings in support of private interests. J.A. 

16–23. The Board also found lack of candor in Ms. Sphatt’s 

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4 SPHATT v. DHS

representations on Agency security forms that she did not 

have “close and/or continuing contact” with any foreign national during a given time, notwithstanding the evidence of 

her contacts with her nephew (a foreign national then) and 

what was inferable about her contacts with Ms. Gan (a foreign national) from Ms. Sphatt’s affidavits attesting to her 

knowledge of the bona fides of Ms. Gan’s marriage to Mr. 

Mao. J.A. 23–31. The Board similarly found unauthorized 

use of TECS; the Board found that the Agency prohibited 

use of the system for personal purposes, even in a training 

setting, and that Ms. Sphatt was aware of the prohibition. 

J.A. 36–41. The Board then rejected Ms. Sphatt’s affirmative defenses, J.A. 42–51, and upheld removal as a reasonable penalty to promote the efficiency of the service, J.A. 

51–60.

The Board’s Initial Decision became final on February 

6, 2020. J.A. 61. Ms. Sphatt timely appealed. We have 

jurisdiction under 5 U.S.C. § 7703(b)(1)(A).1

II

We must uphold the Board decision unless we conclude 

it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” was “obtained without 

procedures required by law, rule, or regulation having been 

followed,” or is “unsupported by substantial evidence.” 5 

U.S.C. § 7703(c); see also Smith v. Gen. Servs. Admin., 930 

F.3d 1359, 1364 (Fed. Cir. 2019). On factual questions, we 

do not “substitute our judgment for that of the board,” 

Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1366 (Fed. Cir. 

2012), but ask only if, on all the evidence, the Board could 

reasonably find the facts it did, even if a contrary finding 

1 Ms. Sphatt had included her affirmative defenses 

of race and age discrimination, which the Board rejected, 

but she has dropped those claims. See 5 U.S.C. 

§ 7703(b)(2).

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SPHATT v. DHS 5

might also have been reasonable, Jones v. Dep’t of Health 

& Hum. Servs., 834 F.3d 1361, 1366 (Fed. Cir. 2016); Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 619–20 (1966);

Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).

A

1

To prove the charge of misuse of government position

(Charge 1), it sufficed for the Agency to prove that Ms. 

Sphatt misused her public office for private gain. See

Gardner v. Dep’t of Veterans Affs., 123 M.S.P.R. 647, 652 

(2016); see also 5 C.F.R. § 2635.702. Relatedly, the Agency 

could show misuse of credentials (Charge 2) by proving 

that Ms. Sphatt used her government credentials without 

authorization. See O’Neill v. Dep’t of Hous. & Urb. Dev., 

220 F.3d 1354, 1358–59 (Fed. Cir. 2000); Fuller v. Dep’t of 

Navy, 465 F. App’x 949, 952 (Fed. Cir. 2012) (per curiam);

see also 5 C.F.R. § 2635.704. Here, the Board determined 

that Charges 1 and 2 “are based on the same incident and 

involve essentially the same misconduct,” and the Board 

treated the two charges together. J.A. 15 (citing Mann v. 

Dep’t of Health & Human Servs., 78 M.S.P.R. 1, 6–7 

(1998)). Ms. Sphatt does not challenge that choice to merge 

the charges.

The Board reasonably found the charges proved based 

on Ms. Sphatt’s use of her official government title and credentials, accompanied by her government office contact information, in connection with her affidavits attesting to the 

bona fides of the marriage of her close friend, Mr. Mao (a 

naturalized citizen), to Ms. Gan (a foreign national). Ms. 

Sphatt admitted that she knew of Mr. Mao and Ms. Gan’s 

difficulties in obtaining a visa for Ms. Gan to enter the 

United States, J.A. 1806 (Day 2 Tr. 81:9–13), and she also 

testified to her concern, based on her experience as an immigration officer, that certain facts about the couple’s union (e.g., a large age difference) might be viewed by an 

Agency adjudicator as “fraud indicators” and generate 

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6 SPHATT v. DHS

doubts about the legitimacy of the marriage, J.A. 1806–08 

(Day 2 Tr. 81:17–83:11). When asked directly, Ms. Sphatt 

confirmed that including her credentials was done to enhance her credibility in her attestation. See J.A. 1812 (Day 

2 Tr. 87:3–11). Based on these and other facts, the Board

reasonably found that Ms. Sphatt improperly used her position and credentials to attempt to influence the petition 

process to aide her good friend and his wife, which here 

amounts to use for a form of personal gain, whether or not 

the adjudicator of the immigration matter was actually influenced. J.A. 18–20; see also 5 C.F.R. § 2635.702 (“An employee shall not use his public office for his own private 

gain, . . . or for the private gain of friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity . . . .”). Although Ms. Sphatt asserted her 

lack of such intent, the Board reasonably found otherwise. 

See Bieber v. Dep’t of the Army, 287 F.3d 1358, 1364 (Fed. 

Cir. 2002) (affording great deference to an administrative 

judge’s credibility determinations). 

The Board’s upholding of Charges 1 and 2, we conclude,

is supported by substantial evidence.

2

To sustain a charge of lack of candor, it sufficed for the 

Agency to prove that Ms. Sphatt gave incorrect or incomplete information to the Agency and did so knowingly. 

Ludlum v. Dep’t of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 

2002). “Lack of candor” is “a broader and more flexible concept” than “falsification.” Id. “Although lack of candor necessarily involves an element of deception, ‘intent to deceive’ 

is not a separate element of that offense—as it is for ‘falsification.’” Id. at 1284–85. In this case, substantial evidence supports the Board’s finding that the Agency proved 

each of three specifications underlying the charge of lack of 

candor.

Two of the specifications involve Ms. Sphatt’s responses on an Agency Questionnaire for National Security 

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SPHATT v. DHS 7

Positions (the SF-86 form) in 2015, and one specification 

involves her withholding of information during an official 

inquiry into her responses on the SF-86 form. Section 19 

of the SF-86 form at issue asked Agency employees if, during the previous seven years, they “have had, close and/or 

continuing contact with a foreign national . . . with whom 

[they] are bound by affection,” J.A. 480, with “foreign national” defined as “any person who is not a citizen or national of the [United States],” J.A. 455. The form also 

included questions about living with or financially supporting foreign nationals during the same period. J.A. 480–81. 

On the SF-86 form Ms. Sphatt submitted May 4, 2015, she

answered “No” to those questions.

The Board reasonably found that the Agency proved

the allegation of two specifications that Ms. Sphatt was not 

candid in the SF-86 form. Specifically, the evidence supports the finding of lack of candor about Ms. Sphatt’s relationships and contacts with Ms. Gan, a foreign national 

within the seven-year period, and with her nephew, who 

also was a foreign national within the period and who lived 

with Ms. Sphatt for part of the time and received financial 

support from her.

As to the former, there was evidence that Ms. Sphatt 

had herself told OSI officials that she had weekly contact 

with Mr. Mao and “closely observed [Ms. Gan] over the past 

2 years.” J.A. 420. In her affidavit (in support of the marriage) filed two weeks after she submitted the SF-86 form, 

Ms. Sphatt asserted, “we have close contact with each 

other,” which the Board reasonably found was referring to 

both Mr. Mao and Ms. Gan (whom she saw together fairly 

often). J.A. 27–28. The Board also reasonably determined: 

“[I]t is axiomatic that if one knows enough about a person 

to vouch for his or her marriage, the person who vouches 

for it can be considered ‘bound by affection.’” J.A. 27.

Regarding her relationship with her nephew, Ms. 

Sphatt testified to the closeness of her relationship, stating 

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8 SPHATT v. DHS

that because of her familial ties, she “would give [her 

nephew’s family] anything, everything I have,” and indeed 

she had given her nephew and his father a large sum of 

money as a gift when they arrived in the United States. 

J.A. 1790–91 (Day 2 Tr. 65:8–66:3). In addition, Ms. 

Sphatt’s nephew used her address when he first came to 

the United States and continued to use her address to receive mail until at least May 2015. J.A. 1791 (Day 2 Tr. 

66:4–8), 1797–98 (Day 2 Tr. 72:20–73:6). The Board reasonably found it “improbable” that Ms. Sphatt’s failure to 

list her nephew was “merely an inadvertent oversight,” 

J.A. 33, especially given her “unblemished work record” as 

an employee “well-versed in immigration laws,” J.A. 34. 

See Ludlum, 278 F.3d at 1284 (lack of candor “may involve 

a failure to disclose something that, in the circumstances, 

should have been disclosed in order to make the given 

statement accurate and complete”).

The remaining specification of failure to be forthcoming 

in speaking to the OSI investigators rests on much the 

same nondisclosure of information as the SF-86 form specifications. We cannot say that the Board lacked substantial evidence in finding this specification proved based on 

Ms. Sphatt’s guarded interactions with the investigators,

when faced with facially contradictory statements in her 

affidavits and SF-86 form responses. Given Ms. Sphatt’s

tenure and experience with immigration procedures, substantial evidence supports the Agency’s determination that 

Ms. Sphatt was less than forthcoming.

The Board’s upholding of Charge 3, we conclude, is supported by substantial evidence.

3

The Agency’s fourth and final charge alleged unauthorized use of TECS. To sustain this charge, it sufficed for the 

Agency to prove that Ms. Sphatt placed personal queries in 

TECS without authorization. See Hernandez v. Dep’t of 

Homeland Security, 324 F. App’x 908, 910 (Fed. Cir. 2009)

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SPHATT v. DHS 9

(per curiam); see also 5 C.F.R. § 2635.704(a). The Board 

reasonably found that the Agency so proved.

Ms. Sphatt does not dispute that she accessed TECS 

multiple times to place queries about herself and her relatives, but she argues that her queries were in the course of 

training new employees and therefore cannot support the 

Agency’s disciplinary decision. This argument fails. The 

Agency presented substantial evidence that use of TECS to 

make inquiries about oneself and one’s relatives was an unauthorized use, even if for training. Training materials for 

TECS, as well as the warning screen that Ms. Sphatt saw 

each time she used the system, expressly state that personnel “cannot use the live system, TECS Production, to learn 

TECS by performing test queries.” J.A. 646; see also J.A. 

38 (citing Day 2 Tr. 46:15–18). Ms. Sphatt completed training on TECS multiple times during her tenure, and in the 

training she was notified that employees were not permitted to use TECS in such a manner. See J.A. 1777 (Day 2 

Tr. 52:2–4). Ms. Sphatt also admitted to knowing that 

Agency policy prohibited such activity. See J.A. 1786 (Day 

2 Tr. 61:7–10) (“Q Isn’t it true that while you were an Immigration Services Officer that you were aware that you 

could not query yourself, relatives, or your spouse in 

TECS? A Yes, I know that.”). 

The Board’s upholding of Charge 4, we conclude, is supported by substantial evidence.

B

Beyond challenging the finding that the Agency proved 

its charges, Ms. Sphatt argues that the conduct identified 

in the proven charges bore an insufficient nexus to the efficiency of the service and that removal was an unreasonably harsh penalty for her conduct. Sphatt Opening Br. at 

24–37. We disagree.

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10 SPHATT v. DHS

1

The statute declares that a disciplinary action of the 

sort at issue here must be “for such cause as will promote 

the efficiency of the service,” 5 U.S.C. § 7513, a requirement that is met if “the employee’s misconduct is likely to 

have an adverse impact on the agency’s performance of its 

functions,” Brown v. Dep’t of the Navy, 229 F.3d 1356, 1358 

(Fed. Cir. 2000). “‘We give wide berth to agency decisions 

as to what type of adverse action is necessary to “promote 

the efficiency of the service,” provided that the agency’s decision bears some nexus to the reason for the adverse action.’” Avalos v. Dep’t of Hous. & Urb. Dev., 963 F.3d 1360, 

1371 (Fed. Cir. 2020) (citation omitted).

Ms. Sphatt argues that the Board could not reasonably 

find an appropriate nexus here because her “job performance and effectiveness were not diminished.” Sphatt 

Opening Br. at 25. But Ms. Sphatt fails to address the substantial evidence that her misconduct affected management’s trust and confidence in her ability to support the 

Agency’s mission. See J.A. 52 (“I find that there is a legitimate government interest of not having the power of the 

government of the United States bear in personal matters.”). As the Board noted, the deciding official testified to 

his lack of trust in Ms. Sphatt: “I have concerns about . . . 

the integrity of the officer.” J.A. 53 (alteration in original); 

see also J.A. 1524 (same); J.A. 1386 (“Not only do[] her actions impair her credibility, but the credibility of [United 

States Customs and Immigration Services].”). The Board’s 

determination to credit that testimony supports the nexus 

finding.

2

Review of an agency’s penalty determination is “highly 

deferential.” Bieber, 287 F.3d at 1365. “‘It is a well-established rule of civil service law that the penalty for employee 

misconduct is left to the sound discretion of the agency,’”

guided by the factors outlined in Douglas v. Veterans 

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SPHATT v. DHS 11

Administration, 5 M.S.P.R. 280, 305–07 (1981). Norris v. 

SEC, 695 F.3d 1261, 1266 (Fed. Cir. 2012) (per curiam) (citation omitted). We see no basis for determining that the 

penalty here was “grossly disproportionate to the offense 

charged,” Bieber, 287 F.3d at 1365, or should be disturbed 

for any other reason.

Ms. Sphatt first challenges the reasonableness of her 

removal, in part, based on the Agency’s initial response (a 

proposed 7-day suspension) to Charges 1 and 2, when those 

charges stood alone. Sphatt Opening Br at 28–29. But 

those charges ended up not standing alone. The decision 

about the appropriate penalty for the totality of the 

charges, after proper consideration by the deciding official,

is to be respected unless it is “totally unwarranted in the 

circumstances such that it is constitutes an abuse of discretion” as to the full charges found supported. Robinson v. 

Dep’t of Veterans Aff., 923 F.3d 1004, 1016–17 (Fed. Cir. 

2019) (internal quotation marks omitted).

The deciding official did not abuse the vested discretion 

in determining: “I have considered that the good order, integrity, and reputation of [the Agency] was undermined by 

your misconduct”; and “I have completely lost trust and 

confidence in your judgment, reliability, and dependability.” J.A. 117. The same is true for the determination: “I 

find that your inability to accept any responsibility demonstrates that you have not learned from your conduct and 

have not reformed your behavior.” Id. The deciding official 

could determine, within the wide discretion permitted, that

the conduct was serious enough, and the chances of Ms. 

Sphatt’s rehabilitation slim enough, to warrant removal. 

Moreover, Ms. Sphatt has not shown error in the Board’s 

affirmance of the deciding official’s determination that Ms. 

Sphatt’s situation was not comparable to the situation in 

any identified disciplinary matter involving another employee in which a penalty less than removal was imposed. 

J.A. 58.

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12 SPHATT v. DHS

Given the deciding official’s consideration of the Douglas factors, and our upholding all four charges against Ms. 

Sphatt, we cannot say the deciding official’s removal decision represents reversible error.

C

Ms. Sphatt challenges aspects of the Agency’s decision 

as violating certain asserted procedural rights. In particular, she alleges that the Agency improperly failed to impose 

lesser discipline before resorting to removal, improperly 

considered certain documents, and improperly punished 

her for conduct that took place too far in the past. See 

Sphatt Opening Br. at 19, 37–40. For these contentions, 

Ms. Sphatt must identify a law, rule, or regulation that the 

Agency improperly ignored or violated. See 5 U.S.C. 

§ 7703(c)(2); see also Diaz v. Dep’t of Air Force, 63 F.3d 

1107, 1108–09 (Fed. Cir. 1995); 5 C.F.R. § 1201.56(c). For 

all but the undue-delay challenge, Ms. Sphatt invokes, in 

this court, only the standard of harmful procedural error. 

See Sphatt Opening Br. at 1–2, 5–6, 19, 37–40. Under that 

standard, she must show that the error was “likely to have 

caused the agency to reach a conclusion different from the 

one it would have reached in the absence or cure of the error.” 5 C.F.R. § 1201.4(r); see also Ward v. U.S. Postal 

Serv., 634 F.3d 1274, 1281 (Fed. Cir. 2011). We reject these 

challenges.

For the Agency’s choice to forgo progressive discipline, 

Ms. Sphatt has not identified any law, rule, or regulation 

that requires a progressive disciplinary procedure that 

starts with a measure short of removal. Agency policy in 

fact permits the opposite: Progressive discipline “is applied 

in all cases except . . . where management deems the misconduct is egregious enough to warrant more serious action 

up to and including removal.” J.A. 1071 (U.S. Citizenship 

and Immigration Services, Discipline and Adverse Actions, 

Management Directive No. 256-002 (2010)). Therefore, Ms. 

Sphatt has failed to identify harmful procedural error.

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SPHATT v. DHS 13

Ms. Sphatt separately argues that the deciding official 

improperly used two categories of evidence beyond that 

considered by the Discipline Review Board. One category 

consists of “documents pertaining to [Ms. Gan and Ms. 

Sphatt’s relatives] . . . relied upon in support of Charge 3 –

Lack of Candor.” J.A. 193. The other consists of documents 

about discipline of other employees that the deciding official looked at to see if they presented situations that were 

comparable to this matter and yet resulted in a lesser penalty than removal—a penalty adopted in this case based on 

the official’s analysis of the seriousness of the conduct, 

other Douglas factors, and the Agency’s Table of Offenses 

and Penalties, J.A. 116–18 (as to all of which Ms. Sphatt 

was given unchallenged notice, see J.A. 85–88 (notice of 

proposed removal)).

As to both categories, Ms. Sphatt’s challenge fails, as 

the Board concluded. J.A. 47–49, 58–59. As to the first, 

Ms. Sphatt was given an opportunity to respond to the documents and instead elected to “rely upon her prior oral reply,” J.A. 186, and she has not shown that the Agency 

would have reached a different outcome in the absence of 

this evidence. As to the second, even though she has had 

access to the documents (about potential comparables) 

since the discovery process that preceded the Board hearing, she has not shown how those documents, or what she 

would have said about them had she been given pre-termination access to them, might have led to a penalty less severe than removal. In these circumstances, we see no basis 

in these challenges for setting aside the Board affirmance 

of the removal. See Harding v. United States Naval Acad., 

567 F. App’x 920, 925 (Fed. Cir. 2014).

Finally, Ms. Sphatt suggests that the Agency improperly considered the TECS charge after a length of time that

was “unreasonable, prejudicial and, as such, violative of 

due process.” See Sphatt Opening Br. at 19. We disagree. 

The only authority she cites is Baldwin v. Department of 

Veterans Affairs, 109 M.S.P.R. 392 (2008), which invokes 

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14 SPHATT v. DHS

the key requirements of laches, stating: “[T]he Board has 

recognized that a charge may be dismissed if an agency’s 

delay in proposing the adverse action is unreasonable and 

prejudicial to the appellant.” Id. at 398; see also Cornetta 

v. United States, 851 F.2d 1372, 1378 (Fed. Cir. 1988) (en 

banc) (requiring proof of prejudice for successful defense of 

laches). But, as the Board determined, J.A. 49–51, Ms. 

Sphatt has not shown unreasonable delay in discovering 

(or therefore acting on) the TECS violations or that the delay was prejudicial. We therefore see no basis in this challenge for disturbing the Board’s decision.

III

For the foregoing reasons, we affirm the decision of the 

Merit Systems Protection Board.

AFFIRMED

COSTS

The parties shall bear their own costs.

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