Full Opinion

Case: 26-1602 Document: 33 Page: 1 Filed: 10/23/2026 NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ JOHN C. LEE, Petitioner v. DEPARTMENT OF HOMELAND SECURITY, Respondent ______________________ 2026-1602 ______________________ Petition for review of the Merit Systems Protection Board in No. SF-0752-18-0187-M-1. ______________________ Decided: October 23, 2026 ______________________ JOHN CHING EN LEE, Concord, CA, pro se. VINCENT DE PAUL PHILLIPS, JR., Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, for respondent. Also represented by TARA K. HOGAN, PATRICIA M. MCCARTHY, BRETT SHUMATE. ______________________ Before MOORE, Chief Judge, DYK and PROST, Circuit Judges. Case: 26-1602 Document: 33 Page: 2 Filed: 10/23/2026 2 LEE v. DHS PER CURIAM. This is John Lee’s second petition for review of the Merit Systems Protection Board’s (Board) final action in his case, the facts and procedural history of which are set forth in our prior order. Lee v. Dep’t of Homeland Sec., No. 24-1334, 2024 WL 3634215, at *1–2 (Fed. Cir. Aug. 2, 2024) (“Remand Order”). Because substantial evidence supports the Board’s remand decision sustaining Mr. Lee’s termina- tion, we affirm. BACKGROUND We repeat facts relevant only to this petition. In 2017, the Department of Homeland Security (DHS) removed Mr. Lee from his position as an Immigration Services Of- ficer II (ISO II). DHS charged Mr. Lee with (1) lack of can- dor with two specifications and (2) unauthorized use of the Treasury Enforcement Communications System (TECS) with one specification. 1 Id. DHS found Mr. Lee lacked can- dor because he lied during an interview with DHS’s Office of Inspector General (OIG) about having no involvement in his wife’s prostitution business, which it was later discov- ered he took out a bank loan to fund. The OIG also learned Mr. Lee conducted three unauthorized searches of his wife’s criminal history in TECS. The Board sustained the charges, found a nexus between his removal and the work of DHS, and determined removal was an appropriate pen- alty. We affirmed the Board’s findings on charges and nexus, but, at DHS’s request, we vacated the Board’s deci- sion as to the penalty of removal and remanded for the Board to reevaluate Mr. Lee’s potential for rehabilitation. Id., at *4 (citing Douglas v. Veterans Admin., 5 M.S.P.B. 1 TECS is an electronic database of criminal law en- forcement information. Case: 26-1602 Document: 33 Page: 3 Filed: 10/23/2026 LEE v. DHS 3 313, 329 (1981)). On remand, the Board reaffirmed its de- cision sustaining removal. Appx. 1–3. 2 Mr. Lee petitions for review. We have jurisdiction under 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A). DISCUSSION We review the Board’s legal conclusions de novo and its fact findings for substantial evidence. Hansen v. Dep’t of Homeland Sec., 911 F.3d 1362, 1366 (Fed. Cir. 2018). “We defer to the Board’s penalty determination unless the pen- alty exceeds the range of permissible punishments speci- fied by statute or regulation, or unless the penalty is so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion.” McIntosh v. Dep’t of Def., 53 F.4th 630, 638 (Fed. Cir. 2022) (internal quotation marks omitted). Mr. Lee contends the Board’s penalty determination is based on three erroneous fact findings: (1) that his lack of candor and unauthorized TECS use constituted serious misconduct; (2) that DHS did not knowingly and unjustifi- ably treat other employees differently; and (3) that he lacks rehabilitation potential. 3 We do not agree. First, Mr. Lee argues his misconduct was not moti- vated by gain, and thus was not serious under the first Douglas factor, because he did not benefit from it. 4 Pet’r’s 2 Citations to “Appx.” refer to the corrected appendix filed by the petitioner in this case. Dkt. No. 19. 3 Though Mr. Lee presents these issues as questions answerable within the Board’s discretion, Pet’r’s Br. 1–2, we understand him to challenge the Board’s fact findings under the corresponding Douglas factors, rather than its weighing of those factors in the penalty analysis. We look for whether substantial evidence supports those findings. 4 Under the first Douglas factor, the Board analyzes the “nature and seriousness of the offense, and its relation Case: 26-1602 Document: 33 Page: 4 Filed: 10/23/2026 4 LEE v. DHS Br. 6–9. The Board explained, however, Mr. Lee’s specific lack of candor in connection with the investigation into his wife’s criminal activity could have “avoid[ed] further in- quiry and preserve[d] his employment.” Appx. 14–15. It also found TECS data is valuable information. Id. These are both benefits Mr. Lee was poised to obtain from his misconduct. We conclude substantial evidence supports the Board’s finding that Mr. Lee was motivated by “per- sonal gain” when he lied to DHS and made unauthorized TECS searches, whether or not he actually benefited from this misconduct. 5 Second, Mr. Lee argues under the sixth Douglas factor that comparator cases show DHS knowingly and unjustifi- ably treated other employees differently. 6 Mr. Lee con- cedes the relevant “Table of Penalties list[s] removal as a possible penalty.” Pet’r’s Br. 21 (citing Appx. 61–63). He argues, however, DHS’s comparator officers “committed ex- tremely egregious misconduct[]” and “those officers de- served to be fired” without adequately explaining why. to the employee’s duties, position, and responsibilities, in- cluding whether the offense . . . was committed maliciously or for gain . . . .” 5 M.S.P.B. at 332. 5 We affirm the Board’s finding under the first Doug- las factor on this basis alone. We note, however, we cannot conclude substantial evidence supports the Board’s sepa- rate findings about the ISO II position, including, e.g., that it “must be occupied by ethical, impartial employees,” be- cause the parties did not provide us with the cited tabs in the administrative record. Contra Resp. Br. 14 (citing Appx. 14). 6 Under the sixth Douglas factor, the Board analyzes the “consistency of the penalty with those imposed upon other employees for the same or similar offenses.” 5 M.S.P.B. at 332. Case: 26-1602 Document: 33 Page: 5 Filed: 10/23/2026 LEE v. DHS 5 Pet’r’s Br. 9–10, 20–21; Reply Br. 1–6. Substantial evi- dence supports the Board’s finding that “the examples prof- fered by the agency reflect that it does remove employees for lack of candor and unauthorized use of TECS, even those who have lengthy federal service and excellent per- formance records.” Appx. 17; see, e.g., Appx. 72–74 (ISO re- moved for lack of candor and improper conduct despite “over thirteen years of Federal service with no prior disci- pline”). Mr. Lee’s proffered comparator cases do not change the outcome. E.g., Pet’r’s Br. 15 (citing Wilson v. Dep’t of Homeland Sec., 120 M.S.P.R. 686 (2014) (removal for misuse of TECS)). Third, Mr. Lee challenges the Board’s finding that he lacks rehabilitation potential under the tenth Douglas fac- tor. 7 Pet’r’s Br. 22–29; Reply Br. 6-8. He contends his fif- teen years of federal service, lack of prior discipline, and successful performance reviews show otherwise. Pet’r’s Br. 22–24. But the Board found those facts were out- weighed by Mr. Lee’s apparent lack of contrition through- out the whole proceeding. Appx. 18 (collecting cases). The Board’s finding is supported by substantial evidence: Mr. Lee has never indicated he appreciates the wrongful- ness of his conduct. Id. He continues to contend on appeal his behavior was appropriate. Pet’r’s Br. 10 (“Petitioner’s conducts [sic] on the other hand were innocuous and caused no harm to his Agency, to the Public, or to Fellow Offic- ers.”), 29. Finally, to the extent Mr. Lee asks us to revisit our prior determination affirming the Board’s decision sustain- ing the charges or finding of a nexus, we decline to do so. Reply Br. 9; Remand Order, at *2–4. 7 Under the tenth Douglas factor, the Board ana- lyzes the “potential for the employee’s rehabilitation.” 5 M.S.P.B. at 332. Case: 26-1602 Document: 33 Page: 6 Filed: 10/23/2026 6 LEE v. DHS CONCLUSION We have considered Mr. Lee’s remaining arguments and find them unpersuasive. Accordingly, we affirm. AFFIRMED COSTS No costs.