Jose A. Rosales v. Department of Homeland Security

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOSE A. ROSALES,
Petitioner
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent
______________________
2024-1665
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-17-0615-I-1.
______________________
Decided: February 19, 2025
______________________
J OSE A. ROSALES , Rialto, CA, pro se.
P ATRICK ANGULO, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BRIAN M.
BOYNTON, ELIZABETH MARIE H OSFORD, P ATRICIA M.
MCCARTHY .
______________________
Before CHEN, SCHALL , and STOLL , Circuit Judges.
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ROSALES v. DHS 2
P ER CURIAM .
The United States Department of Homeland Security
(DHS) removed Jose Rosales, the petitioner, from his posi-
tion as a United States Customs and Border Protection
(CBP) Officer. Mr. Rosales appealed his removal to the
Merit Systems Protection Board (Board), which affirmed in
an initial decision. See Rosales v. DHS, No. SF-0752-17-
0615-I-1, 2018 WL 1146166 (M.S.P.B. Mar. 2, 2018) (Appx.
8–39)1 (Decision)2. The full Board denied Mr. Rosales’s pe-
tition for review, thereby making the administrative
judge’s initial decision the final decision of the Board. See
Rosales v. DHS, No. SF-0752-17-0615-I-1, 2024 WL
510904, at *1 (M.S.P.B. Feb. 8, 2024) (Appx. 1–7); 5 C.F.R.
§ 1201.113(b). Mr. Rosales now petitions for our review of
the Board’s final decision. For the following reasons, we
affirm.
BACKGROUND
Mr. Rosales served in the U.S. Marine Corps from July
2007 to March 2015. During that time period, Mr. Rosales
had reserve duty obligations with a unit stationed at Camp
Pendleton, California. He was employed as a Border Patrol
Agent from 2011 to 2014, and then as a CBP Officer from
2014 until his removal.
While Mr. Rosales served as a Border Patrol Agent, a
Supervisory Border Patrol Agent reported his suspicions
that Mr. Rosales was misusing military leave. The Super-
visory Border Patrol Agent also reported concerns about
the authenticity of a document used by Mr. Rosales to sup-
port his military leave. The Immigration and Customs
1 “Appx.” refers to the appendix filed with the gov-
ernment’s informal brief.
2 Because the electronic version of the decision lacks
page designations, we employ the pagination used in the
decision at Appx. 8–39.
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ROSALES v. DHS 3
Enforcement Office of Professional Responsibility (OPR)
initiated an investigation and ultimately issued a final re-
port. The CBP’s Disciplinary Review Board, in response to
OPR’s final report, proposed removal based on five
charges: (1) lack of candor, (2) failure to provide accurate
information, (3) conduct unbecoming, (4) misuse of a gov-
ernment computer, and (5) falsification. Decision at 4.
DHS sustained all five charges and removed Mr. Rosales
from federal service.
Mr. Rosales appealed his removal to the Board, which
affirmed. Id. at 2. The full Board denied Mr. Rosales’s pe-
tition for review, and Mr. Rosales now petitions for our re-
view of the Board’s final decision. We have jurisdiction
under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
We must affirm the Board’s decision unless we find
that it is “(1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). We review the Board’s determinations
of law without deference and the Board’s findings of fact for
substantial evidence. Brenner v. Dep’t of Veterans Affs.,
990 F.3d 1313, 1322 (Fed. Cir. 2021).
Mr. Rosales’s arguments focus on the lack of candor
charge, the falsification charge, and the severity of DHS’s
penalty, i.e., removal.
I
We begin with Mr. Rosales’s lack of candor charge. To
prove a lack of candor, DHS must show that (1) the em-
ployee gave incorrect or incomplete information, and
(2) that he or she did so knowingly. Ludlum v. Dep’t of Jus-
tice, 278 F.3d 1280, 1284, 1285–86 (Fed. Cir. 2002). DHS’s
lack of candor charge stems from Mr. Rosales’s alleged im-
proper use of military leave and various alleged
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ROSALES v. DHS 4
misrepresentations made relating to that leave. Decision
at 7. The Board sustained five distinct specifications of
Mr. Rosales’s lack of candor. Id. at 13.
In the second specification, DHS charged Mr. Rosales
with making untruthful statements in an interview during
the OPR investigation. Id. at 7. According to DHS,
Mr. Rosales untruthfully claimed that his supervisor,
Ms. Halcomb, “advised him that he was permitted to use
military leave to travel to and from military drills, military
functions, and military orders and ‘for deployment pur-
pose[s].’” Id. (citation omitted). Ms. Halcomb submitted a
sworn and witnessed affidavit that contradicted
Mr. Rosales’s statement. As summarized by the Board,
Ms. Halcomb testified in her affidavit that:
[S]he instructed [Mr. Rosales] that (1) military
leave was only to be used for actual military train-
ing, (2) he was supposed to use his military leave
for annual training, (3) he would have to use an-
nual leave, days off, and leave without pay to get
all of his required reserve time done throughout the
year, and (4) he would need to adjust his days off
schedule to coordinate with his drill weekends and
save his military leave for annual training.”
Id. at 8 (emphasis added).
Mr. Rosales challenges the Board’s reliance on
Ms. Halcomb’s affidavit for this specification. He contends
that the Board erred in finding Ms. Halcomb’s affidavit
“more credible than the actual in person testimony of [him-
self].” Pet’r’s Informal Br. 1. Credibility determinations,
however, “are virtually unreviewable.” Hambsch v. Dep’t
of Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986). These de-
terminations “will not be disturbed unless inherently im-
probable, discredited by undisputed evidence, or contrary
to physical facts.” Holmes v. U.S. Postal Serv., 987 F.3d
1042, 1047 (Fed. Cir. 2021) (citation omitted). The record
here provides ample support for the Board’s credibility
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ROSALES v. DHS 5
determinations. Ms. Halcomb’s affidavit was witnessed by
two OPR investigators. Decision at 7. Moreover, as the
Board noted and Mr. Rosales does not challenge, Ms. Hal-
comb’s explanation of military leave policies in her affida-
vit tracks the applicable agency policies. Id. at 8. In
contrast, the record did not corroborate Mr. Rosales’s testi-
mony, and he was “extremely evasive” when answering
questions about his military leave. Id. at 9. Nothing war-
rants upsetting the Board’s credibility determinations.
Mr. Rosales next contends that, for the remaining spec-
ifications underpinning his lack of candor charge, the
Board improperly shifted the burden of proof onto him. Ac-
cording to Mr. Rosales, the Board incorrectly required him
to prove that he was authorized to take military leave,
whereas DHS should bear the burden in proving that
Mr. Rosales was dishonest in his reasons for seeking mili-
tary leave.
We disagree with this characterization of the Board’s
decision—the Board never required Mr. Rosales to prove
that he was authorized to take military leave. Rather, once
the government presented evidence that Mr. Rosales was
not scheduled for military reserve duty on the dates-in-
question, yet he requested, and the agency approved, mili-
tary leave, see, e.g., id. at 19, the burden shifted to
Mr. Rosales to produce rebuttal evidence suggesting other-
wise (i.e., evidence that he had a valid reason for using mil-
itary leave). See Schapansky v. Dep’t of Transp., 735 F.2d
477, 482 (Fed. Cir. 1984) (“Once an agency has made a
prima facie showing, the burden of going forward with evi-
dence to rebut that showing necessarily shifts to the em-
ployee, who is in the best position to present explanatory
evidence to counter that showing.”). And in rebuttal, he
offered only his “evasive” personal testimony, which the
Board found unpersuasive. Decision at 9, 12–13.
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ROSALES v. DHS 6
II
We next address Mr. Rosales’s falsification charge. To
prove a charge of falsification, DHS must prove that
Mr. Rosales (1) made an affirmative misrepresentation
and (2) intended to deceive the agency. Ludlum, 278 F.3d
at 1284. DHS’s falsification charge stems from
Mr. Rosales’s alteration or fabrication of military orders to
support his use of military leave. Decision at 19.
Mr. Rosales faults the Board for not giving enough
weight to Mr. Rosales’s witness, Mr. Williams. Mr. Wil-
liams’s testimony explained that reservists were given a
template order in support of military leave, which reserv-
ists could modify to reflect their drill dates. Id. at 20. Yet
Mr. Williams’s testimony said nothing about whether
Mr. Rosales could modify the order to include dates that he
“was not in fact drilling.” Id. (emphasis added).
Mr. Rosales next faults the Board for not considering
his testimony that “he was scheduled for [reservist train-
ing] that weekend” but was told to return home after arriv-
ing at Camp Pendleton. Pet’r’s Informal Br. 6–7. Yet the
Board did consider this testimony. See Decision at 19–20.
It nevertheless declined to credit it because 2013 records
from the Marine Corps showed that Mr. Rosales had no
scheduled reserve duty, and Mr. Rosales provided no cred-
ible evidence supporting his testimony.
III
Mr. Rosales also challenges the penalty of removal.
The Board “has the authority to mitigate an agency-im-
posed penalty when it is clearly excessive with respect to
the sustained charges.” Hayes v. Dep’t of the Navy, 727
F.2d 1535, 1540 (Fed. Cir. 1984). “Unless the penalty is
totally unwarranted or grossly disproportionate to the mis-
conduct, we will not overturn it.” Mazares v. Dep’t of the
Navy, 302 F.3d 1382, 1386 (Fed. Cir. 2002).
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ROSALES v. DHS 7
Mr. Rosales’s challenge centers on alleged comparator
employees supposedly receiving less severe penalties. See
Pet’r’s Informal Br. 5, 8. But these other employees faced
not only different charges but also fewer specifications sup-
porting each charge. See Decision at 24. In light of these
differences, we find Mr. Rosales’s argument unpersuasive.
CONCLUSION
We have considered Mr. Rosales’s remaining argu-
ments and find them unpersuasive. We therefore affirm.
AFFIRMED
COSTS
No costs.
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