Sphatt v. Dhs ( 2021 )

Case: 20-1451 Document: 52 Page: 1 Filed: 04/07/2021
NOTE: This disposition is nonprecedential.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, Washing-
ton, DC, for respondent. Also represented by JEFFREY B.
CLARK, ROBERT EDWARD KIRSCHMAN, JR., LOREN MISHA
PREHEIM.
______________________
Before LOURIE, TARANTO, and STOLL, Circuit Judges.
Case: 20-1451 Document: 52 Page: 2 Filed: 04/07/2021
2 SPHATT v. DHS
TARANTO, Circuit Judge.
Jane Sphatt was removed from her position as an Im-
migration Officer at the Department of Homeland Secu-
rity’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 con-
duct 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 in-
volving 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 na-
ture 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 cre-
dentials. 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 in-
ternal investigation, Ms. Sphatt made certain representa-
tions that conflicted with information she provided in
employment security paperwork. J.A. 417–25. The inves-
tigation into this new complaint unearthed thirteen occa-
sions 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 infor-
mation 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 deci-
sion to the Board on May 13, 2019.
The Board, in an Initial Decision rendered by a Board
administrative judge, upheld the Agency’s removal deci-
sion. 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 sur-
rounding Ms. Sphatt’s use of her government title and cre-
dential 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 na-
tional 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 for-
eign 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 affirma-
tive defenses, J.A. 42–51, and upheld removal as a reason-
able 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 other-
wise 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); Con-
solo 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 cre-
dentials, accompanied by her government office contact in-
formation, 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 im-
migration officer, that certain facts about the couple’s un-
ion (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 en-
hance 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 po-
sition 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 in-
fluenced. J.A. 18–20; see also 5 C.F.R. § 2635.702 (“An em-
ployee shall not use his public office for his own private
gain, . . . or for the private gain of friends, relatives, or per-
sons with whom the employee is affiliated in a nongovern-
mental 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 incom-
plete 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 con-
cept” than “falsification.” Id. “Although lack of candor nec-
essarily involves an element of deception, ‘intent to deceive’
is not a separate element of that offense—as it is for ‘falsi-
fication.’” Id. at 1284–85. In this case, substantial evi-
dence 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 re-
sponses 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, dur-
ing 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 na-
tional” defined as “any person who is not a citizen or na-
tional of the [United States],” J.A. 455. The form also
included questions about living with or financially support-
ing 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 sup-
ports the finding of lack of candor about Ms. Sphatt’s rela-
tionships 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 mar-
riage) 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 re-
ceive 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 rea-
sonably 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 spec-
ifications. We cannot say that the Board lacked substan-
tial 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, sub-
stantial evidence supports the Agency’s determination that
Ms. Sphatt was less than forthcoming.
The Board’s upholding of Charge 3, we conclude, is sup-
ported by substantial evidence.
3
The Agency’s fourth and final charge alleged unauthor-
ized 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 rela-
tives, 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 un-
authorized 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 person-
nel “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 train-
ing on TECS multiple times during her tenure, and in the
training she was notified that employees were not permit-
ted 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 Im-
migration 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 sup-
ported 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 ef-
ficiency of the service and that removal was an unreasona-
bly 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 require-
ment 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 de-
cision bears some nexus to the reason for the adverse ac-
tion.’” 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 perfor-
mance and effectiveness were not diminished.” Sphatt
Opening Br. at 25. But Ms. Sphatt fails to address the sub-
stantial evidence that her misconduct affected manage-
ment’s trust and confidence in her ability to support the
Agency’s mission. See J.A. 52 (“I find that there is a legiti-
mate government interest of not having the power of the
government of the United States bear in personal mat-
ters.”). 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 ac-
tions 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-estab-
lished 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) (ci-
tation 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 discre-
tion” 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, in-
tegrity, and reputation of [the Agency] was undermined by
your misconduct”; and “I have completely lost trust and
confidence in your judgment, reliability, and dependabil-
ity.” J.A. 117. The same is true for the determination: “I
find that your inability to accept any responsibility demon-
strates 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 em-
ployee 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 Doug-
las factors, and our upholding all four charges against Ms.
Sphatt, we cannot say the deciding official’s removal deci-
sion represents reversible error.
C
Ms. Sphatt challenges aspects of the Agency’s decision
as violating certain asserted procedural rights. In particu-
lar, 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 er-
ror.” 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 mis-
conduct 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 offi-
cial looked at to see if they presented situations that were
comparable to this matter and yet resulted in a lesser pen-
alty 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 doc-
uments and instead elected to “rely upon her prior oral re-
ply,” 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 hear-
ing, she has not shown how those documents, or what she
would have said about them had she been given pre-termi-
nation access to them, might have led to a penalty less se-
vere 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 improp-
erly 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 de-
lay was prejudicial. We therefore see no basis in this chal-
lenge 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.