on Albee v Department of Homeland Security (CAFC No. 2021-1608 (nonprecedential) 2/22/2022, the agency removed Mr. Albee from his position at GS-14 based on three reasons, one of which was “submission of reimbursement claims for unauthorized travel expenses, with 25 separate.Details supporting this reason.On appeal, the MSPB held a hearing and ruled that the agency had failed to prove the other two reasons, but proved 20 of the 25 details of the outstanding payment of unauthorized travel expenses. (Opinion p. 2) Mr .Albee then took his case to the appellate court.
In the backup, Mr. Albee was a GS-14 Supervisory Border Patrol Agent when he was affected. CBP is part of the Department of Homeland Security (DHS). His agency sent Albee on long term TDY for about 14 months. Apparently, he submitted travel vouchers claiming expenses that he was not allowed to claim under the agency’s regulations.
While the five -page court decision did not describe the type of claimed costs that caused Albee trouble, it noted that MSPB sustained 20 of the times the unauthorized costs claimed, which MSPB found it specifications sufficient to proceed with the charge, and it was decided. that this charge is sufficient to dismiss. (P. 3) Albee’s appeal court argued that MSPB erred when it believed that the agency did not have to prove “fraudulent intent when he submitted the voucher,” that the finding was not supported by substantial evidence, which the agency failed. to establish a connection between the fee and the effectiveness of the service, and that removal is an unreasonable penalty. (P. 3)
The court did a brief job on these arguments. First, with regard to intent, the court noted that it was significant that the agency charge did not include intent and for this reason did not have to prove to the agency that Albee intended to submit fraudulent claims. As properly directed by the MSPB, the charge is “‘Submission of Reimbursement Claims for Unauthorized Travel Expenses’… A charge such as this’ does not open proof of intent.” (P. 4)
The court further showed that it was not “attracted” to the argument that the evidence did not substantiate the 20 details that remained standing after the MSPB’s findings. No, the court ruled; they were confirmed by the agency with a lot of evidence. (P. 4)
Regarding the nexus argument, MSPB found a clear connection and the court supported the finding that: Albee’s misconduct “occurred at work and involved his violation of policies related to… travel expenses. ” (P. 4)
Finally, with regard to punishment, the court agreed with MSPB that the agency weighed the causal factors and did not abuse its discretion in removing Albee. (P ,. 5)
The removal of Mr. Albee was upheld by the appellate court. His final stop was to negotiate with the U.S. Supreme Court to take up his case, a possibility with high probability.
There is a lesson for agency practitioners in a decision like this: Maintain the standard of disciplinary terms as “causes” or “charges.” If words such as intent to defraud are used unnecessarily, then on appeal the agency must prove that the employee’s misconduct was committed with intent.
© 2022 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written permission from Susan McGuire Smith.