Case: 21-1608 Document: 67 Page: 1 Filed: 02/22/2022
NOTE: This disposition is nonprecedential.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, Wash-
ington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, MARTIN F. HOCKEY, JR., LOREN MISHA PREHEIM.
______________________
Before LOURIE, SCHALL, and TARANTO, Circuit Judges.
Case: 21-1608 Document: 67 Page: 2 Filed: 02/22/2022
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 af-
firmed 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 juris-
diction 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 unau-
thorized travel expenses (25 specifications) (Charge 1);
making unauthorized cash withdrawals on a government
travel card (Charge 2); and failure to cooperate in an offi-
cial 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 ad-
ministrative 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 Cor-
rected Appendix, filed Nov. 22, 2021 (Dkt. No. 48).
Case: 21-1608 Document: 67 Page: 3 Filed: 02/22/2022
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 other-
wise not in accordance with law; (2) obtained without pro-
cedures 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. Edi-
son Co. v. Nat’l Labor Rels. Bd.,
305 U.S. 197, 229 (1938).
III
Between July 27, 2014, and September 6, 2015, Mr. All-
bee was on long-term temporary duty (“TDY”) status. App.
2. In Charge 1, CBP alleged that, when Mr. Allbee submit-
ted expense vouchers for the TDY period, he sought reim-
bursement 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 ad-
vances 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 prepon-
derance of the evidence, App. 6–26, is not supported by sub-
stantial 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 al-
leged 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
Case: 21-1608 Document: 67 Page: 4 Filed: 02/22/2022
4 ALLBEE v. DHS
App. 32–36; Allbee Br. 35–40. We address Mr. Allbee’s con-
tentions 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 Unau-
thorized 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.” Ham-
ilton 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 preponder-
ance of the evidence is supported by substantial evidence.
Under
5 U.S.C. § 7513(a) an agency may remove an em-
ployee 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 ac-
tion and either the employee’s ability to accomplish his or
her duties satisfactorily or some other legitimate govern-
ment 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 be-
tween the sustained charge and the efficiency of the ser-
vice.” App. 32. The AJ found that Mr. Allbee’s misconduct
“occurred at work and involve[d] his violation of policies re-
lated to . . . his requests for reimbursement of travel ex-
penses.” App. 32. We see no error in this finding. Mr.
Case: 21-1608 Document: 67 Page: 5 Filed: 02/22/2022
ALLBEE v. DHS 5
Allbee’s sole argument with respect to the AJ’s nexus de-
termination 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 deter-
mining nexus.
Turning to Mr. Allbee’s final argument, as far as pen-
alty 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. Vet-
erans Administration,
5 M.S.P.B. 313, 331–32 (1981), in de-
termining whether the penalty imposed upon Mr. Allbee
was reasonable. See App. 33–36. We have carefully con-
sidered Mr. Allbee’s arguments to the contrary. See Allbee
Br. 36–40. None of them has persuaded us that, in impos-
ing 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 war-
rant 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.
