Opinion

Jesse Vega v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Jan 15, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 38.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JESSE VEGA, DOCKET NUMBER

Appellant, DA-0752-24-0205-I-1

DEPARTMENT OF HOMELAND DATE: January 15, 2026

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Christopher Forasiepi , Esquire, and Shane Robertson , Esquire,

Dallas, Texas, for the appellant.

Jennifer N. Milam , Esquire, Houston, Texas, for the agency.

Mateusz Czapla , Esquire, Edinburg, Texas, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

sustained his removal. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

A nonprecedential order is one that the Board has determined does not add significantly

to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders

have no precedential value; the Board and administrative judges are not required to

follow or distinguish them in any future decisions. In contrast, a precedential decision

issued as an Opinion and Order has been identified by the Board as significantly

contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

material fact; the initial decision is based on an erroneous interpretation of statute

or regulation or the erroneous application of the law to the facts of the case; the

administrative judge’s rulings during either the course of the appeal or the initial

decision were not consistent with required procedures or involved an abuse of

discretion, and the resulting error affected the outcome of the case; or new and

material evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of Federal

Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the

filings in this appeal, we conclude that the petitioner has not established any basis

under section 1201.115 for granting the petition for review. Therefore, we DENY

the petition for review and AFFIRM the initial decision, which is now the Board’s

final decision. 5 C.F.R. § 1201.113(b).

On review, the appellant concedes that he engaged in conduct unbecoming

but argues that the administrative judge erred in sustaining the charges of lack of

candor and abuse of position. He further argues that the penalty is unreasonably

harsh and that the agency would not have removed him absent the lack of candor

charge.

Regarding the lack of candor charge, the appellant argues that the agency

failed to prove that he had an “intent to deceive.” However, the Board has held

that, unlike falsification, lack of candor does not require an intent to deceive.

Fargnoli v. Department of Commerce, 123 M.S.P.R. 330, ¶ 10 (2016) (citing

Ludlum v. Department of Justice, 278 F.3d 1280, 1284-85 (Fed. Cir. 2002)).

Although lack of candor does involve an “element of deception,” proof of that

element requires only that an appellant knowingly made a false statement or failed

to be fully forthright. Fargnoli, 123 M.S.P.R. 330, ¶ 10 (citing Parkinson v.

Department of Justice, 815 F.3d 757, 766-67 (Fed. Cir. 2016); Rhee v. Department

of the Treasury, 117 M.S.P.R. 640, ¶ 11 (2012), overruled in part on other grounds

by Savage v. Department of the Army, 122 M.S.P.R. 612 (2015), overruled in part

by Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-25).

Accordingly, the Board has held that lack of candor requires proof of the following:

(1) that the employee gave incorrect or incomplete information; and (2) that he did

so knowingly. Fargnoli, 123 M.S.P.R. 330, ¶ 10. Here, the appellant stated in a

memorandum to his supervisor that he had pulled his vehicle over to the emergency

lane on the night of his arrest. Initial Appeal File (IAF), Tab 7 at 32. As the

appellant presumably knew, a forthright statement would have included the fact

that his vehicle had fallen into a ditch. See IAF, Tab 6-1 (bodycam footage), Tab 7

at 40-43 (arrest report). We therefore agree with the administrative judge that the

agency proved the charge of lack of candor.

To sustain a charge of misuse of position, the agency must prove that the

appellant misused his public office for private gain. Gardner v. Department of

Veterans Affairs, 123 M.S.P.R. 647, ¶ 11 (2016) (citing Mann v. Department of

Health and Human Services, 78 M.S.P.R. 1, 8 (1998)), clarified by Pridgen,

2022 MSPB 31, ¶¶ 23-24. 2 The appellant contends that he identified himself as a

Border Patrol Agent to correct the responding officers’ misapprehension that he

was a constable for the Hidalgo County Sheriff’s Office, where he was previously

employed. However, the bodycam footage shows that the appellant identified

himself as a Border Patrol Agent unprompted. See IAF, Tab 6-1 at 2:00. Under

these circumstances, we find it more likely than not that the appellant identified

himself as a Border Patrol Agent for the purpose of obtaining favorable treatment.

In Gardner and Mann, the Board held that the charge of using one’s office for private

gain cannot be sustained when no private gain has been shown. Gardner, 123 M.S.P.R.

647, ¶ 11; Mann, 78 M.S.P.R. at 8. However, the charging language in both cases cited a

violation of 5 C.F.R. § 2635.702. In this case, the proposal notice does not contain any

regulatory reference, and the Board has expressly rejected the argument that, when an

agency charges misuse of position, but does not reference a regulation, the agency should

be held to a regulatory burden. See Voorhis v. Department of Homeland Security,

116 M.S.P.R. 538, ¶ 23 (2011), aff’d, 474 F. App’x 778 (Fed. Cir. 2012). In Voorhis, the

Board sustained a charge of misuse of position without regard to whether the appellant

actually benefited from the misuse. Id. We agree with the administrative judge that in

this case, as in Voorhis, the agency need only prove that the appellant misused his

position in an attempt to achieve some private gain, regardless of whether he ultimately

benefited from his behavior.

Because we sustain the charges of lack of candor and abuse of position, it is

unnecessary to address the appellant’s contention that removal would be an

unreasonably harsh penalty absent the lack of candor charge. We discern no error

in the administrative judge’s penalty analysis based on the sustained charges, and

we agree that the penalty of removal is within the bounds of reasonableness,

particularly given the appellant’s potential Giglio impairment. 3

NOTICE OF APPEAL RIGHTS 4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such review

and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we

offer the following summary of available appeal rights, the Merit Systems

Protection Board does not provide legal advice on which option is most appropriate

for your situation and the rights described below do not represent a statement of

how courts will rule regarding which cases fall within their jurisdiction. If you

wish to seek review of this final decision, you should immediately review the law

applicable to your claims and carefully follow all filing time limits and

requirements. Failure to file within the applicable time limit may result in the

dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review below

to decide which one applies to your particular case. If you have questions about

whether a particular forum is the appropriate one to review your case, you should

contact that forum for more information.

In Giglio v. United States, 405 U.S. 150, 154 (1972), the U.S. Supreme Court held that

the Government must disclose evidence affecting the credibility of Government

witnesses. Subsequent case law has extended this rule to require Government agencies to

review the personnel files of Government witnesses and disclose material that could cast

doubt on their credibility or potential for bias. See United States v. Henthorn, 931 F.2d

29, 30-31 (9th Cir. 1991).

Since the issuance of the initial decision in this matter, the Board may have updated the

notice of review rights included in final decisions. As indicated in the notice, the Board

cannot advise which option is most appropriate in any matter.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to the

U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that any

attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of discrimination.

This option applies to you only if you have claimed that you were affected by an

action that is appealable to the Board and that such action was based, in whole or in

part, on unlawful discrimination. If so, you may obtain judicial review of this

decision—including a disposition of your discrimination claims —by filing a civil

action with an appropriate U.S. district court (not the U.S. Court of Appeals for the

Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C.

§ 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If

you have a representative in this case, and your representative receives this

decision before you do, then you must file with the district court no later than

30 calendar days after your representative receives this decision. If the action

involves a claim of discrimination based on race, color, religion, sex, national

origin, or a disabling condition, you may be entitled to representation by a court-

appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or

other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding all

other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and

your representative receives this decision before you do, then you must file with the

EEOC no later than 30 calendar days after your representative receives this

decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If

so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review

either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals

of competent jurisdiction. 5 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)

(1)(B).

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on July

7, 2018, permanently allows appellants to file petitions for judicial review of MSPB

decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the

Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All

Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat.

1510.

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the following

address: