Lee v. Dhs
CourtCourt of Appeals for the Federal Circuit
Date FiledOctober 23, 2026
Docket26-1602
StatusUnpublished
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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NOTE: This disposition is nonprecedential.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.
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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
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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.
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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.
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6 LEE v. DHS
CONCLUSION
We have considered Mr. Lee’s remaining arguments
and find them unpersuasive. Accordingly, we affirm.
AFFIRMED
COSTS
No costs.