                     NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                     2009-3038

                              MAYRA R. HERNANDEZ,

                                                           Petitioner,

                                          v.

                    DEPARTMENT OF HOMELAND SECURITY,

                                                           Respondent.


      Mayra R. Hernandez, of Kingwood, Texas, pro se.

       Armando A. Rodriquez-Feo, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
him on the brief were Jeanne E. Davidson, Director, and Deborah A. Bynum, Assistant
Director.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                       2009-3038

                               MAYRA R. HERNANDEZ,

                                                                 Petitioner,

                                           v.

                    DEPARTMENT OF HOMELAND SECURITY,

                                                                 Respondent.


   Petition for review of the Merit Systems Protection Board in DA-0752-07-0301-I-2.

                          __________________________

                             DECIDED: May 8, 2009
                           __________________________


Before MAYER, BRYSON, and PROST, Circuit Judges.

PER CURIAM.

       Mayra R. Hernandez appeals the final order of the Merit Systems Protection

Board denying her petition for review of the initial decision affirming the Department of

Homeland Security’s (“agency”) action in removing her from the position of Criminal

Investigator.   Hernandez v. Dep’t of Homeland Sec., No. DA-0752-07-0301-I-2

(M.S.P.B. Sept. 11, 2008). The board concluded that there was no new, previously

unavailable, evidence and that the administrative judge made no error in law or

regulation affecting the outcome. Id.; 5 C.F.R. § 1201.115(d).    We affirm.
      Hernandez was removed from her position as a Criminal Investigator, effective

March 9, 2007, on four charges: (1) providing a false statement to assist her mother in

obtaining U.S. citizenship; (2) making false statements, misstatements, and omissions

during an official investigation; (3) misusing government equipment; and (4) failing to

cooperate in an official investigation.   The board sustained the agency’s first three

charges. With respect to charge one, in 2001, Hernandez stated in a sworn affidavit

that her mother lived with her in the United States for the preceding ten years.

However, on her 1997 Questionnaire for National Security Positions (“QNSP”), she

reported her mother’s address as “Rafael Solis, #1101 Colonia Aurora in Matamoras,

Mexico.” To explain the discrepancy, Hernandez said that her mother used her address

as a permanent address, and that is why she stated that her mother had lived with her

for the past ten years, even though she spent some of the same time period living in

Mexico.

      Regarding charge two, in 2004, Hernandez signed an adoption-related court

document indicating that she was still married to Aurelio Hernandez, whom she

divorced in 1997. In 2005, she signed a contradictory affidavit, stating that she and her

ex-husband never represented themselves to be married since their divorce.          She

defended her actions by stating that she signed the first affidavit without reviewing the

accompanying documentation. In addition, on a 2003 QNSP Hernandez misstated her

income for child support payments, and in 2004, she falsely stated that the information

provided in her 2001 sworn affidavit was true, including the statement that her mother

lived in the United States since 1980 on a permanent basis.




2009-3038                                   2
       The agency next charged her with misusing government equipment because an

agency search of the Treasury Enforcement Communications System (“TECS”)

revealed that she had queried her own name and home address in direct violation of

TECS rules.    Despite formal training and certification on accessing the TECS, she

denied knowledge that searching her own name and home address in the system was

prohibited. The board did not sustain the agency’s fourth charge, namely, that

Hernandez failed to cooperate during an official investigation.

       On appeal, Hernandez asserts that the board failed to review her petition, and

instead, simply followed the Administrative Judge’s decision.        She argues that the

agency’s removal penalty was in retaliation for personal rather than professional issues,

and was excessive in light of her performance record. The scope of our review in an

appeal from a decision of the board is limited. Generally, we must affirm the decision

unless we find it to be “(1) arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law; (2) obtained without procedures required by law, rule, or

regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C.

§ 7703(c). The board found, and the parties do not dispute, that Hernandez made false

statements in connection with her mother’s citizenship application regarding her

mother’s residence, her income, and her daughter’s adoption by her ex-husband. There

is likewise no dispute that Hernandez accessed the TECS and queried her own name

and home address.

       The board found Hernandez’s explanation for providing incorrect information on

the affidavit in support of her mother’s application for United States citizenship not

credible. Because she provided a detailed explanation of why her mother lived with her




2009-3038                                    3
continuously for ten years, the board found that Hernandez intentionally omitted the fact

that her mother also lived for a time with her brothers and in Mexico during the ten years

at issue. The board also did not credit Hernandez’s explanation with respect to charge

two, because as a trained criminal investigator who had attended law school, she would

not likely sign an affidavit without reading the accompanying petition. Finally, the board

sustained the agency’s charge of misuse of government equipment. It credited the

agency’s training academy instructor’s testimony that employees were specifically

trained never to query their own names, and never to access TECS for anything other

than official agency business, over Hernandez’s testimony, which it found to be

inconsistent. The board’s fact finding function is benefited by the opportunity to hear

live testimony and assess witness demeanor and credibility first-hand.        Substantial

evidence supports the board's determinations that the agency met its burden of proving

by preponderant evidence that Hernandez knowingly supplied false information with the

intention of defrauding the agency and court, and misused government equipment.

      With respect to the removal penalty, the board independently balanced the

relevant Douglas factors, including Hernandez’s disciplinary history, satisfactory

performance reviews, the gravity of her misconduct, and its relation to the efficiency of

the service. In determining that the penalty of removal was within the tolerable limits of

reasonableness, the board found that Hernandez’s lack of prior disciplinary actions and

satisfactory performance reviews could not counterbalance the seriousness of her

misconduct and her supervisor’s loss of trust in her integrity and honesty. A very high

standard of honesty and credibility is expected of law enforcement officers because of

the public trust and confidence attendant to their job responsibilities.       Moreover,




2009-3038                                   4
Hernandez’s record of false statements could affect her credibility if she needed to

testify in court as a government witness. See Giglio v. United States, 405 U.S. 150, 154

(1972). Finally, because Hernandez did not acknowledge any wrongdoing or express

any regret for her actions, the board found her likelihood for rehabilitation slight.

Because the board applied the appropriate legal standards, and substantial evidence

supports its conclusions, its decision must stand.




2009-3038                                   5
