Opinion

John Luff v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Feb 19, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 38.8%

“[W]e need not concern ourselves with these potential constitutional difficulties because a construction that avoids them is virtually compelled by the language and structure of the statute.”

How later courts described this case

“[W]e need not concern ourselves with these potential constitutional difficulties because a construction that avoids them is virtually compelled by the language and structure of the statute.”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHN RICHARD LUFF, DOCKET NUMBER

Appellant, DA-0752-23-0318-I-1

DEPARTMENT OF HOMELAND DATE: February 19, 2026

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Daniel Patrick Meyer , Esquire and Lachlan McKinion , Esquire,

Washington, D.C., for the appellant.

Edith Moore McGee , Esquire, Washington, D.C., for the agency.

Kevin Bruen , Esquire, Alameda, California, 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

following circumstances: the initial decision contains erroneous findings of

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. Except as expressly MODIFIED to

REVERSE the administrative judge’s findings sustaining specifications 2 through

5 and 7 through 34 of charge 2, and FIND that the appellant’s conduct still merits

removal, we AFFIRM the initial decision.

BACKGROUND

The agency removed the appellant, a U.S. Coast Guard (USCG) Marine

Inspector, in May 2023. Initial Appeal File (IAF), Tab 8 at 37, 39-43, 88-105.

Pursuant to a 2020 investigation, the USCG Investigative Service (CGIS)

determined that the appellant, among other things, accessed thousands of web

addresses promoting white supremacist, antisemitic, and misogynist content, and

disseminated some such content to himself and other USCG personnel. IAF,

Tab 8 at 111-129, Tab 20 at 25. The charges the appellant was removed for,

which stemmed from the CGIS investigation and an ensuing administrative

investigation, included charge 2, unauthorized personal use of Government

equipment in violation of regulations, for using his Government computer to

access personal shopping sites (specification 1) and emailing from his

Government account to his personal account or other agency personnel materials

or links to sites described by the agency as, among other things, white

supremacist, misogynist, alt-right, or antisemitic (specifications 2 through 38).

IAF, Tab 8 at 89-95. The appellant was also charged with two specifications of

lack of candor (charge 4), based on statements he made when interviewed during

the administrative investigation. Id. at 101. The appellant appealed his removal

to the Board. IAF, Tab 1.

After holding a hearing, the administrative judge sustained the appellant’s

removal, sustaining all specifications of charges 2 and 4. 2 IAF, Tab 24, Initial

Decision (ID). In sustaining specifications 2 through 38 of charge 2, the

administrative judge concluded that the appellant violated Commandant

Instruction (COMDTINST) 5375.1D, § 7.a.(2), which prohibits “[i]ntentionally

creating, copying or transmitting any materials or communications that may be

considered hate incidents or discriminatory to fellow employees or to the public.”

ID at 11-15; IAF, Tab 9 at 325. The administrative judge also sustained both

specifications of charge 4, lack of candor, finding that the alleged statements

were implausible and known by the appellant to be incorrect when he made them.

ID at 16-19. After denying all of the appellant’s affirmative defenses, the

administrative judge determined that the agency proved nexus and the

reasonableness of its penalty. ID at 19-32.

The appellant filed a petition for review in which he argues, among other

things, that the COMDTINST 5375.1D, § 7.a.(2) is vague and that he nonetheless

did not violate that section because his conduct did not meet its definition of

“illegal discrimination.” Petition for Review (PFR) File, Tab 1. The agency filed

a response, to which the appellant replied. PFR File, Tabs 3-4.

The administrative judge did not sustain charge 1, conduct unbecoming, and charge 3,

unauthorized use of official time. IAF, Tab 24, Initial Decision at 3-7, 15-16. Neither

party challenges these findings on review, and we thus do not disturb them.

ANALYSIS

We reverse the administrative judge’s findings sustaining specifications 2 through

5 and 7 through 34 of charge 2.

The appellant argues that COMDTINST 5375.1D, § 7.a.(2), which, again,

prohibits “[i]ntentionally creating, copying or transmitting any materials or

communications that may be considered hate incidents or discriminatory to fellow

employees or to the public,” is vague because the term “discriminatory” is

undefined. 3 PFR File, Tab 1 at 9; IAF, Tab 9 at 325. But as the appellant

recognizes, the section goes on to define “illegal discrimination” as “any

intentional action or omission that results in the adverse treatment of a person

because of that person’s race, color, religion, national origin, disability, handicap,

age or gender, including sexual harassment or intentional actions or omissions in

reprisal.” PFR File, Tab 1 at 9; IAF, Tab 9 at 325. The appellant then argues that

the meaning of “any intentional action or omission that results in the adverse

treatment of a person” is unclear, but that nevertheless, there was no evidence of

such in this case. PFR File, Tab 1 at 9-10.

The structure of § 7.a.(2), which defines “illegal discrimination”

immediately after the prohibition of acts involving “discriminatory” materials or

communications, indicates that by “discriminatory,” the section meant “illegal

discrimination.” IAF, Tab 9 at 325. The appellant’s claim that “discriminatory”

is undefined raises the question of what type of discrimination other than the

“illegal” kind he expected the instruction to define. We thus see no vagueness

issue in the use of the word “discriminatory.” See Unites States v. Culbert,

435 U.S. 371, 374 (1978) (“[W]e need not concern ourselves with these potential

constitutional difficulties because a construction that avoids them is virtually

compelled by the language and structure of the statute.”).

The appellant also raises an overbreadth claim regarding COMDTINST 5375.1D, PFR

File, Tab 1 at 8, but because he does not explain it, we do not address it.

We need not answer the appellant’s claim that “illegal discrimination” is

also vague, however, because we agree with the appellant that no evidence shows

that his conduct constituted “illegal discrimination” as defined in § 7.a.(2), i.e.,

“result[ed] in the adverse treatment of a person because of that person’s”

protected characteristic. PFR File, Tab 1 at 9-10; IAF, Tab 9 at 325 (emphasis

added). None of the individuals interviewed to whom the appellant emailed links

or materials claimed to have suffered anything that can be interpreted to

constitute “adverse treatment,” IAF, Tab 20 at 32-36, and there is no indication of

such adverse treatment of any person otherwise in the record.

Nevertheless, § 7.a.(2) prohibits “transmitting any materials or

communications that may be considered hate incidents or discriminatory to

fellow employees or to the public.” IAF, Tab 9 at 325 (emphasis added). “Hate

incident” is defined in § 7.a.(2) as “any intentional act (conduct or speech) of

intolerance committed against a person, a group of individuals, or property which

is motivated, in whole or in part, by the offender’s bias against a race, color,

religion, sex, national origin, disability, age, or sexual orientation and which is

intended to or is more than likely than not to have the effect of intimidating

others or inciting others to similar conduct.” Id. The appellant does not argue

that the materials he emailed may not be considered “hate incidents.” The

appellant thus could only have committed the alleged misconduct in charge 2,

specifications 2 through 38 if his conduct involved “transmitting any materials or

communications that may be considered hate incidents.” Because the

administrative judge did not make explicit findings regarding whether the

appellant’s conduct fit this standard, we do so now.

Of the 37 specifications of charge 2 implicating § 7.a.(2), i.e.,

specifications 2 through 38, 4 we find that the agency submitted evidence

Though none of these specifications specifically cite § 7.a.(2), they describe conduct

which would only be prohibited under that section of COMDTINST 5375.1D. IAF,

Tab 8 at 89-95; Tab 9 at 322-28.

sufficient to sustain only five—specifications; those being specifications 6 and 35

through 38. The materials the appellant is charged with emailing in these

specifications are included, in whole or in part, in the record.

In support of specification 6, the CGIS report contains the following

excerpt of the article the appellant is charged with emailing a link for in the

specification: “Decline is irreversible. The relentless occupation of the West by

hordes of Muslims and Africans is an expression of White male decadence and

effeminacy. Only out of the coming chaos and violence will strong White men

rise to resurrect the West.” IAF, Tab 8 at 90, 113, 224.

In support of specification 35, the CGIS report includes a copy of the

article the appellant is accused of emailing titled “Blacks, Jews and You,” which

laments the prominence of Jewish individuals in the media and questions the truth

of the Holocaust. Id. at 95, 225-32. Similarly, the CGIS report includes the

evidence necessary to specification 36’s charge that the appellant emailed a

critique of the Green New Deal that recommended that “[t]he right . . . use

economic sanctions to stop the n*gs from desertifying their continent via

overgrazing.” Id. at 95, 202-05. Similar evidence was found in the CGIS report

supporting specification 37’s charge that the appellant emailed a document about

the adverse effects of fluoride containing the line: “so Lord knows what other

flavorless toxic chemicals the jews are putting into you and your family.” Id. at

95, 154-56. Finally, one of the articles at issue in specification 38, titled

“Fertility and corporal punishment,” ties corporal punishment of women

positively to fertility rates, minimalizes the rape of female children by adult

males, and exhorts the following: “we have to reject and dismiss consent

culture . . . The very concept of rape and consent attributes unrealistic agency to

women. As in the old testament, we should give female consent as little moral

and legal weight as possible . . .” Id. at 95, 209-20.

We find that the above-described materials constitute “hate incidents”

under § 7.a.(2) because of the authors’ respective biases against Muslims,

Africans, non-White Americans, Jewish people, African Americans, or women,

and the likelihood of intimidating individuals in such groups. We thus find that

the agency proved by preponderant evidence the conduct in these specifications.

In contrast, the only evidence the agency offered to prove the contents of

the materials at issue in the remaining specifications of charge 2, specifications 2

through 38, was—other than an ambiguous meme relating to specification 28—

the CGIS report’s characterizations of the materials, which lacked sufficient

detail or explanation to support findings that “hate incidents” were involved. For

instance, the CGIS report described several websites the appellant emailed links

to as white supremacist, alt-right, or misogynistic, among other labels, in some

cases using such labels not to describe the materials themselves but, less

relevantly, websites hosting the materials or their authors. Id. at 111-26. But the

CGIS descriptions contained no excerpts or other objective indicia which would

enable us to determine that the materials qualified as “hate incidents.” We thus

reverse the administrative judge’s findings sustaining the remaining

specifications of charge 2 implicating § 7.a.(2), i.e., specifications 2 through 5

and 7 through 34. 5

The sustained misconduct still merits removal.

As set forth above, the administrative judge sustained five specifications

under charge 2 and both specifications under charge 4. The administrative judge

did not sustain charge 1 or 3. When not all of the charges are sustained, the

Board will carefully consider whether the sustained charges merited the penalty

imposed by the agency. Hoofman v. Department of the Army, 118 M.S.P.R. 532,

¶ 17 (2012), aff’d, 526 F. App’x 982 (Fed. Cir. 2013) . The Board must also

consider that a majority of the specifications under charge 2 were not sustained.

Cf. Byers v. U.S. Postal Service, 78 M.S.P.R. 456, 463-654 (1998) (stating that

The appellant’s arguments on review provide no basis to disturb the administrative

judge’s findings sustaining specification 1 of charge 2 or either specification of charge

when all of an agency’s charges are sustained, but not all of the underlying

specifications, the agency’s selected penalty is entitled to due deference and

should be reviewed to determine its reasonableness for the sustained

specifications).

The appellant does not challenge the administrative judge’s penalty

analysis on review, including her analysis of the factors set forth in Douglas v.

Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), 6 in which we discern no

error. We find that, even having reversed the administrative judge’s findings

sustaining 32 specifications of charge 2, her Douglas factors analysis is still

apropos and the sustained charges still warrant removal. We make this finding

because the essence of the sustained charges remains intact—as evidenced by the

record, including the appellant’s own hearing testimony, indicating that the

appellant emailed the “hate incidents” described above from his Government

computer to himself for further reading or to others, then lacked candor when

questioned about his actions during an investigation. We find that the factors

favoring mitigation—including the appellant’s lack of prior discipline, strong job

performance, and lengthy Federal service—are outweighed by the sum of (1) the

seriousness of his conduct in light its intentionality, repetitiveness, and the nature

of the “hate incidents” at issue, (2) his position’s interaction with the public,

(3) the damage his offenses inflicted on his supervisors’ confidence in his ability

to perform his duties, (4) his knowledge of the policies at issue, and (5) his lack

of rehabilitative potential, as demonstrated by his lack of candor. See id. We

thus sustain the appellant’s removal.

In Douglas, the Board articulated a nonexhaustive list of factors relevant to the

penalty determination in adverse actions.

NOTICE OF APPEAL RIGHTS 7

The initial decision, as supplemented by this Final Order, constitutes the

Boards final decision in this matter. 5 C.F.R. § 1201.113. 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.

(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).

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.

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. 8 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).

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