NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

JOHN C. LEE,

Petitioner

v.

DEPARTMENT OF HOMELAND SECURITY,

Respondent

______________________ 

2024-1334

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. SF-0752-18-0187-I-1.

______________________ 

Decided: August 2, 2024

______________________ 

JOHN CHING EN LEE, Concord, CA, pro se.

 LAUREL DON HAVENS, III, Commercial Litigation 

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

BRIAN M. BOYNTON, TARA K. HOGAN, PATRICIA M.

MCCARTHY. 

______________________ 

Case: 24-1334 Document: 24 Page: 1 Filed: 08/02/2024
2 LEE v. DHS

Before MOORE, Chief Judge, PROST, Circuit Judge, and 

MAZZANT, District Judge.1

PER CURIAM. 

John Lee appeals from the November 13, 2023 decision 

of the Merit Systems Protection Board (Board) denying his 

petition for review and affirming the administrative 

judge’s (AJ) decision sustaining the Department of Homeland Security’s (DHS) charges against Mr. Lee and penalizing him by removal. For the reasons set forth below, we

affirm-in-part, vacate-in-part, and remand.

BACKGROUND

Mr. Lee was an Immigration Services Officer II (ISO 

II) with the DHS, Citizen and Immigration Services Field 

Office Directorate, San Francisco Field Office. As part of 

his responsibilities, Mr. Lee used an electronic database of 

criminal law enforcement information called Treasury Enforcement Communications System (TECS). 

In March 2008, Mr. Lee’s wife owned the Crystal Massage Parlor. The local sheriff’s department executed a 

search warrant on the business and arrested and charged 

Mr. Lee’s wife. In connection with his wife’s arrest, the 

DHS’s Office of Inspector General (OIG) investigated 

whether Mr. Lee was engaged in criminal activity. Mr. Lee 

was interviewed in August 2009 as part of the investigation. On August 26, 2013, the OIG learned Mr. Lee received a bank loan which he gave to his wife to purchase 

the Crystal Massage Parlor. Mr. Lee did not disclose this 

fact during his interview with the OIG in 2009. On August 

30, 2013, in a second interview, Mr. Lee confirmed he 

1 Honorable Amos L. Mazzant, III, District Judge, 

United States District Court for the Eastern District of 

Texas, sitting by designation.

Case: 24-1334 Document: 24 Page: 2 Filed: 08/02/2024
LEE v. DHS 3

obtained a bank loan and gave the money to his wife to buy 

the Crystal Massage Parlor. 

The OIG also learned that, in March 2009, Mr. Lee conducted three unauthorized searches in TECS for various 

versions of his wife’s name. When asked in October 2013, 

Mr. Lee denied conducting any unauthorized searches, including for his wife, in TECS. 

Mr. Lee was prosecuted in 2015 on two counts of making false statements in violation of 18 U.S.C. § 1001. In 

December 2015, the DHS suspended Mr. Lee indefinitely

pending the disposition of the criminal charges. In October 

2016, he was convicted on one count, and sentenced to two 

years of probation and a fine. The DHS issued a notice of 

proposed removal based on three charges: (1) knowingly 

associating with a criminal, (2) lack of candor with two 

specifications, and (3) unauthorized use of TECS with one 

specification. In December 2017, the deciding official sustained charges 2 and 3, and Mr. Lee was removed from the 

DHS. 

Mr. Lee appealed his removal to the Board. The Board 

affirmed the DHS’s decision. Specifically, the Board found 

Mr. Lee failed to disclose to the OIG in 2009 that he took 

out a bank loan to give his wife money to purchase the 

Crystal Massage Parlor (Lack of Candor Specification 1 

Charge), knowingly denied making unauthorized TECS 

searches of his wife’s name (Lack of Candor Specification 2 

Charge), and admitted making the unauthorized TECS 

searches (TECS Charge). 

The Board found the DHS showed by preponderant evidence a nexus. With respect to charge 2, the Board found 

lack of candor during an interview with the OIG directly 

impacts the efficiency of the service. With respect to charge 

3, the Board found there is a presumption of nexus where 

the charged misconduct occurred at work. The Board further found Mr. Lee did not present evidence to defeat the 

finding of nexus. 

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4 LEE v. DHS

The Board sustained the penalty of removal. In making its determination, the Board found the deciding official 

appropriately weighed the relevant factors in deciding the 

appropriate penalty. The Board agreed the charges were 

quite serious and Mr. Lee’s conduct eroded the necessary 

public trust and confidence in the agency’s officers. The 

Board also agreed Mr. Lee was placed on notice of his obligation of candor through prior disciplinary action, and he

had notice of the appropriate use of TECS through system 

warnings and training. The Board found Mr. Lee did not 

meet his burden to establish inconsistent penalties with 

comparator employees. The Board concluded Mr. Lee’s removal was reasonable and not an abuse of discretion. Mr. 

Lee appeals. We have jurisdiction under 28 U.S.C. 

§ 1295(a)(9).

DISCUSSION

We review the Board’s legal conclusions de novo and its 

fact findings for substantial evidence. Hansen v. Dep’t of 

Homeland Sec., 911 F.3d 1362, 1366 (Fed. Cir. 2018). “We 

may reverse the Board only if its decision 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.’” Id. (quoting 

Cobert v. Miller, 800 F.3d 1340, 1347–48 (Fed. Cir. 2015)). 

“We defer to the Board’s penalty determination unless the 

penalty exceeds the range of permissible punishments 

specified by statute or regulation, or unless the penalty is 

so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion.” McIntosh 

v. Dep’t of Def., 53 F.4th 630, 638 (Fed. Cir. 2022) (internal 

quotation marks omitted). 

I.

Mr. Lee argues the Board erred in sustaining the Lack 

of Candor Specification 1 Charge. Mr. Lee asserts the 

Board should have relied on O’Lague v. Department of 

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LEE v. DHS 5

Veterans Affairs, 123 M.S.P.R. 340 (2016), aff’d, 696 F.

App’x 1034 (Fed. Cir. 2017). Lee Opening Br. at 8. We do 

not agree. The Board cited Ludlum v. Department of Justice, 278 F.3d 1280 (Fed. Cir. 2002), to support its conclusion that an agency is not necessarily required to prove the 

appellant provided incorrect answers to specific questions 

about a material issue to prove its charged lack of candor. 

J.A. 15. Ludlum explains a lack of candor charge “may involve a failure to disclose something that . . . should have 

been disclosed in order to make the given statement accurate and complete.” 278 F.3d at 1284. The issue was 

whether a charge of lack of candor could be sustained when 

the appellant “did not respond fully and truthfully” to the 

agency. Id. at 1285. By contrast, O’Lague concerns a 

charge for lack of candor based on an affirmative misrepresentation. 123 M.S.P.R. at 348. There, the Board determined the agency was required to prove the appellant 

made the statement in question and he did so knowingly 

because the agency based its charge on an alleged affirmative misrepresentation. Id. Here, the Board found Mr. 

Lee’s charge is based on an omission, not an affirmative 

misrepresentation to the agency. J.A. 16. Mr. Lee’s omission is a failure to disclose information, which is akin to not 

responding fully and truthfully. J.A. 16. The Board did 

not err in applying Ludlum to the facts of this case.

Mr. Lee also argues the Board’s finding that he gave 

incorrect or incomplete information is not supported by

substantial evidence. Lee Opening Br. at 10. Specifically, 

Mr. Lee argues there is no evidence the OIG ever posed a 

question to him regarding funding of the Crystal Massage 

Parlor, and the charge cannot be sustained without evidence recording the specific question asked and the answer 

Mr. Lee gave in response. We do not agree. The Board 

credited the OIG’s memorandum memorializing the August 2009 interview with Mr. Lee. J.A. 16. The memorandum states “Lee denied that he ever funded or gave money 

to [his wife] for the massage parlor. . . . Lee was asked if he 

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6 LEE v. DHS

ever assisted in setting up the massage parlor business and 

replied no.” Id. The Board found it had no reason to doubt 

this memorandum, which is consistent with the record and 

was prepared and signed shortly after the interview by the 

interviewing agents. Id. Mr. Lee argues agents should not 

be allowed to alter memorandums after the fact to support 

their case but does not cite to any evidence this occurred 

here. The Board also relied upon Mr. Lee’s own admission

that he did not tell the OIG in the 2009 interview about the 

bank loan. J.A. 16. Substantial evidence supports the 

Board’s finding. 

Mr. Lee further argues the Board erred in finding he 

knowingly omitted information regarding the bank loan in 

his 2009 interview. Lee Opening Br. at 11. He contends 

that he did not remember the bank loan of $30,000 when 

he was interviewed because his wife had already been 

granted diversion two months earlier, and therefore he did 

not necessarily withhold information. This argument is 

without merit. The Board found it implausible that Mr. 

Lee would not think it appropriate to disclose information 

regarding the bank loan when asked how he contributed to 

his wife’s business. J.A. 17. The Board analyzed the progression of questions and answers recorded in the OIG’s 

memorandum, and found Mr. Lee initially denied any involvement, but then back tracked when asked more specific 

questions. Id. The Board’s finding is supported by substantial evidence. We therefore affirm the Board’s finding 

for Mr. Lee’s Lack of Candor Specification 1 Charge.

II.

Mr. Lee argues the Board erred in sustaining the Lack 

of Candor Specification 2 Charge. Lee Opening Br. at 14–

15. Mr. Lee argues he was never asked, point blank, 

whether he searched his wife’s name in TECS. Id. at 14. 

Whether Mr. Lee ran the searches in question is not in dispute. J.A. 18. The Board found DHS proved Mr. Lee knowingly denied making unauthorized TECS queries of his 

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LEE v. DHS 7

wife’s name. J.A. 18–20. As support, the Board cited to the 

OIG’s memorandum memorializing the October 2013 interview with Mr. Lee in which he was asked if he “ever made

unauthorized queries of [his] wife in TECS for personal 

use.” J.A. 19. Mr. Lee responded “no.” J.A. 19; S. Appx.2

36. Mr. Lee does not dispute the accuracy of the memorandum or that he responded “no” to several questions on 

whether he made unauthorized queries. Even under Mr. 

Lee’s interpretation of O’Lague, substantial evidence supports the Board’s finding that he made a statement denying running unauthorized TECS queries.

Mr. Lee also argues the Board erred in finding he knew 

his statement was incorrect. Lee Opening Br. at 15–18. 

But the Board did not find Mr. Lee’s argument that he forgot he made the TECS searches credible. J.A. 19–20. The 

Board found his arguments throughout the litigation were 

inconsistent and he was evasive in responding to direct 

questions about his ability to recall the TECS searches of 

his wife. Id. To the extent Mr. Lee asks us to find error in 

the Board’s evaluation of his credibility, such credibility determinations are “virtually unreviewable.” Hambsch v. 

Dep’t of Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986). Substantial evidence thus supports the Board’s finding that 

Mr. Lee knowingly denied making unauthorized TECS 

searches. We therefore affirm the Board’s finding for Mr. 

Lee’s Lack of Candor Specification 2 Charge.

III.

Mr. Lee argues the Board erred in finding nexus with 

regard to the Lack of Candor Specification 2 Charge. Lee 

Opening Br. at 19. Specifically, Mr. Lee argues there is no 

nexus because the Board applied the wrong law, Ludlum. 

As discussed above, the Board correctly applied Ludlum to 

2 S. Appx. refers to the supplemental appendix filed 

with the Response Brief. 

Case: 24-1334 Document: 24 Page: 7 Filed: 08/02/2024
8 LEE v. DHS

the facts of this case. The Board found Mr. Lee’s lack of 

candor during his interview with the agency directly impacts the efficiency of the service. J.A. 22. 

Mr. Lee also argues the Board erred in finding nexus 

with regards to the TECS Charge because the search was 

performed nine years ago at the time of the hearing, and 

the efficiency of DHS was not affected as evidenced by his 

subsequent performance evaluations and bonuses. Lee 

Opening Br. at 19. The Board found Mr. Lee’s conduct supported a presumption of nexus because the TECS searches 

occurred while he was on duty using access to a system he 

was granted to perform his duties. J.A. 22. The Board also 

concluded there is a presumption of nexus where the 

charged misconduct occurred at work. J.A. 22 (citing Parker v. U.S. Postal Serv., 819 F.2d 1113, 1116 (Fed. Cir. 

1987)). Substantial evidence supports the Board’s finding 

of nexus. We therefore affirm the Board’s nexus finding.

IV.

Mr. Lee argues the Board erred in finding he did not 

suffer unfair prosecution. Lee Opening Br. at 20. Mr. Lee 

asserts his criminal prosecution for the same conduct underlying the Lack of Candor Specification 2 Charge and 

TECS charge is a violation of his right to equal protection 

and cruel and unusual punishment because comparator officers were never prosecuted, and the United States Citizen 

and Immigration Services (USCIS) penalty for these 

charges is reprimand, suspension, or removal. Id. at 20–

23. DHS responds that Mr. Lee is conflating his criminal 

prosecution with employment discipline. Response Br. at 

18. We agree. The Board was responsible only for reviewing the agency-imposed penalty. Douglas v. Veterans Admin., 5 M.S.P.R. 280, 302 (1981). In its decision, the Board 

found the deciding official’s testimony established Mr. 

Lee’s removal was consistent with comparator cases and 

unrelated to his criminal prosecution. J.A. 23–25; S. Appx. 

52.

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LEE v. DHS 9

DHS, however, concedes the Board erred in consideration of the reasonableness of Mr. Lee’s penalty of removal. 

Response Br. at 16–20. Specifically, DHS notes the deciding official erred in considering Mr. Lee’s 2015 disciplinary

action for lack of candor in his analysis of the “potential for 

rehabilitation” factor. S. Appx. 7. DHS reasons Mr. Lee’s 

present penalty is for conduct occurring in 2009 and 2013, 

and therefore penalties levied in 2015 could not have had 

a deterrent effect and should not be considered under the 

“potential for rehabilitation” factor. Meads v. Veterans Admin., 36 M.S.P.R. 574, 584 (1988) (“This reprimand cannot 

properly be considered as evidence of a prior disciplinary 

record since it could have had no deterrent effect on the 

appellant’s charged misconduct. It cannot, therefore, be 

considered as evidence of a lack of rehabilitation potential.”). DHS asks this court to remand this case to the 

Board to evaluate the penalty without regard to Mr. Lee’s 

2015 suspension under the rehabilitation Douglas factor. 

We agree. The Board erred in its review of the penalty of 

removal when it considered Mr. Lee’s 2015 suspension. We 

also agree with DHS that the appropriate course of action 

is for this court to vacate and remand for consideration in 

the first instance by the Board. 

CONCLUSION

We have considered Mr. Lee’s other arguments and 

find them unpersuasive. For the reasons discussed above, 

we affirm the Board with respect to its findings for the

charges against Mr. Lee and nexus, but we vacate and remand with respect to the penalty of removal for further 

analysis consistent with this opinion.

AFFIRMED-IN-PART, VACATED-IN PART, AND

REMANDED

COSTS

No costs. 

Case: 24-1334 Document: 24 Page: 9 Filed: 08/02/2024