In Albee v Department of Homeland Security (CAFC No. 2021-1608 (nonprecedential) 2/22/2022, the agency removed Mr. Albee from his GS-14 position based on three reasons, one of which was “submission of reimbursement claims for unauthorized travel expenses, with 25 separate specifications supporting this reason. On appeal, the MSPB held a hearing and decided that the agency failed to prove the other two reasons, but had proved 20 of the 25 specifications in the remaining charge on unauthorized travel expenses. (Opinion p. 2) Mr. Albee then took his case to the appeals court.
Backing up, Mr. Albee was a GS-14 Supervisory Border Patrol Agent when he ran into trouble. CBP is part of the Department of Homeland Security (DHS). His agency sent Albee on long term TDY for some 14 months. As it turns out, he submitted travel vouchers that claimed expenses he was not allowed to claim under the agency’s regulations.
While the court’s five-page decision does not delineate the kind of claimed expenses that got Albee into trouble, it did note that MSPB sustained 20 of the instances of unallowable expenses claimed, that MSPB found these specifications sufficient to sustain the charge, and it ruled that this charge was enough to warrant removal. (P. 3) Albee’s court appeal argued that MSPB erred when it held that the agency did not have to prove that there was “fraudulent intent when he submitted the vouchers”, that the finding was not supported by substantial evidence, that the agency failed to establish a nexus between the charge and the efficiency of the service, and that removal was an unreasonable penalty. (P. 3)
The court made short work of these arguments. First, as to intent, the court notes significantly that the agency charge did not include intent and for this reason it was simply not necessary for the agency to prove that Albee intended to submit fraudulent claims. As the MSPB correctly ruled, the charge was “‘Submission of Reimbursement Claims for Unauthorized Travel Expense’…A charge such as this ‘does not turn on proof of intent.” (P. 4)
The court further indicated it was not “persuaded” by the argument that the evidence did not prove the 20 specifications that remained standing after MSPB’s findings. Not so, ruled the court; the agency proved them with substantial evidence. (P. 4)
As to the nexus argument, the MSPB found a clear nexus and the court sustains that finding: Albee’s misconduct “occurred at work and involved his violation of policies related to…travel expenses.” (P. 4)
Finally, as to penalty, the court agreed with MSPB that the agency had weighed relevant factors and had not abused its discretion in removing Albee. (P,. 5)
Mr. Albee’s removal has been sustained by the appeals court. His last stop would be talking the U.S. Supreme Court into taking his case, a prospect with very long odds.
There’s a lesson for agency practitioners in a decision such as this: Stick to the basics in wording disciplinary “reasons” or “charges.” If words like intent to defraud are used unnecessarily, then on appeal the agency will have to prove the employee’s misconduct was done with intent.
