Misuse of Position Leads to Removal

By on December 16, 2007 in Court Cases, Current Events with 0 Comments

A Senior Special Agent of the Immigration and Customs Enforcement Agency, fired for misrepresentation and misuse of his position, failed to convince the Federal Circuit to overturn the adverse action. (Lair v. Department of Homeland Security, C.A.F.C. No. 2007-3147 (nonprecedential), 12/14/07) Here are the facts as explained in the court’s opinion.

The agency brought action against Lair for misuse of his position in that he improperly injected himself into an agency investigation into the immigration status of a Venezuelan national. Apparently Mr. Lair wrote agency officials handling the case without having an official basis for getting involved and asked that Ms. Rivero be granted a 6-month extension of her visa. The agency also charged that Lair employed Rivero who did not have a valid work permit. The misrepresentation charge stems from Lair’s falsely stating that Ms. Rivero was his wife’s cousin. (Opinion p. 2)

Lair appealed his firing to the Merit Systems Protection Board. He did not fare well there, however. The Administrative Judge assigned to hear his case found that the agency had proved its case, the penalty of removal was reasonable, and the adverse action promoted the efficiency of the service. (p. 3)

In his court appeal, Lair tossed out several arguments attacking the AJ’s handling of his case. The court addresses and dismisses each in turn, finding that the AJ’s actions were reasonable, and that there was substantial evidence to support the finding that the agency had met its burden of proof. (pp. 4-6)

Lair also argued to the court that the AJ was biased against him as demonstrated by the judge’s conclusory comments supposedly made during the telephonic prehearing conference in which the AJ pushed for a settlement. The court turned aside this challenge, but in doing so had some cautionary words for the Merit Systems Protection Board:

"In the context of discussing possible settlement, it was not inappropriate for the AJ to indicate his view of the merits of Mr. Lair’s case. That said, this case provides us with an opportunity to note that the Board’s AJs should at all times conduct proceedings in a manner that does not in any way give rise to the appearance of hostility to an appellant’s case." (p. 6)

The Board may have been mildly taken to task, but this is small comfort for Lair who stays fired.

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.