Nguyen v. Dep't of Homeland Sec.

Decision Date09 December 2013
Docket NumberNo. 2013–3024.,2013–3024.
Citation737 F.3d 711
PartiesTrong Q. NGUYEN, Petitioner, v. DEPARTMENT OF HOMELAND SECURITY, Respondent.
CourtU.S. Court of Appeals — Federal Circuit

OPINION TEXT STARTS HERE

David S. Handsher, Law Offices of David Handsher, of San Francisco, CA, argued for petitioner.

Michael P. Goodman, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. On the brief were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, Reginald T. Blades Jr., Assistant Director, and Jane W. Vanneman, Senior Trial Counsel. Of counsel on the brief was J. Douglas Whitaker, Senior Attorney, Office of Chief Counsel, United States Department of Homeland Security, Immigration and Customs Enforcement, of Omaha, NE.

Before DYK, O'MALLEY, and WALLACH, Circuit Judges.

WALLACH, Circuit Judge.

Trong Nguyen is an employee at the Department of Homeland Security (“the Agency”). In Mr. Nguyen's former position as a Deportation Officer, GS–12, he worked closely with the United States Attorney's Office for the Northern District of California (“USAO”). Mr. Nguyen was often required to testify as a witness during grand jury proceedings and criminal prosecutions. In 2008, Mr. Nguyen was subject to an Office of Professional Responsibility (“OPR”) investigation, in which he admitted to making false statements during a police investigation. Following the OPR investigation, the Agency initiated a removal proceeding, ultimately imposing a fourteen-day suspension after three of the five charges were sustained.

Two years later, the USAO determined that Mr. Nguyen's disciplinary history impaired his credibility as a witness, pursuant to Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The USAO notified the Agency that it would no longer allow Mr. Nguyen to testify in criminal prosecutions or swear out complaints. The Agency initiated another removal proceeding, this time charging “Inability to Perform Full Range of Duties.” J.A. 62–64. Upon finding the charge was sustained, the Agency mitigated the proposed penalty and demoted Mr. Nguyen to a Detention and Removal Assistant, GS–7. The Merit Systems Protection Board (“Board”) affirmed, holding the Agency did not impermissibly subject Mr. Nguyen to double punishment, and that Mr. Nguyen's due process rights were not violated. This court affirms.

Background

Mr. Nguyen is an employee at the Agency's San Francisco Detention and Removal Operations Field Office.1 In his former position as a Deportation Officer, Mr. Nguyen was responsible for preparing documentation for warrants of arrest and deportation, cooperating with USAO prosecutors in apprehending and prosecuting aliens, and participating in deportation and exclusion proceedings.

On April 18, 2008, the Agency issued a notice of proposed removal charging Mr. Nguyen with (1) lack of candor in an investigation; (2) preparing an official letter for unauthorized purposes; (3) misuse of law enforcement resources; (4) receiving and reviewing an alien file for unofficial business; and (5) conduct unbecoming a federal law enforcement officer. The first charge was based on a police investigation relating to a suspicious purchase of a Sears refrigerator owned by Mr. Nguyen. The Agency alleged that Mr. Nguyen told two separate and inconsistent stories about how he obtained the refrigerator. Mr. Nguyen told a police detective investigating the matter that Sears delivered the refrigerator to his house with someone else's name on the receipt. He seemingly disclaimed any knowledge of the matter by saying he was immediately suspicious of the transaction. However, Mr. Nguyen also told a Sears manager that he paid an individual named “Jeff” to purchase the refrigerator with an employee discount, and that he paid $1,600 for a $2,000 refrigerator. During an OPR investigation, Mr. Nguyen confirmed that Jeff helped him create a false transaction for the refrigerator purchase, and further admitted making false statements during the police investigation.

Charge two alleged that Mr. Nguyen, without authorization, wrote a letter on the Agency's letterhead to Jeff's mortgage company, and signed it using his title as Immigration Information Officer. Charges three and four alleged that Mr. Nguyen used law enforcement resources to conduct queries on Jeff's criminal history and immigration status. Finally, charge five alleged that Mr. Nguyen purchased the Sears refrigerator in a business transaction of “questionable legality.” J.A. 70–71.

On June 24, 2008, the Agency sustained charges three through five. The deciding official found the first two charges were not “proven to [her] satisfaction.” J.A. 74. Rather than removing Mr. Nguyen, the deciding official chose to mitigate the proposed penalty to a fourteen-day suspension.

About two years later, in early 2010, the Chief Assistant U.S. Attorney (“AUSA”) and the Deputy Chief AUSA asked Mr. Nguyen to complete a form disclosing possible impeachment information. One question asked: “Have you been disciplined in the past?” J.A. 18. Mr. Nguyen answered “yes,” and provided a copy of the 2008 Notice of Proposed Removal, the fourteen-day suspension, and the OPR's investigation report. After examining this information, the Chief and Deputy Chief AUSAs told Mr. Nguyen that the impeachment concerns it raised prevented Mr. Nguyen from swearing out complaints or testifying.

On June 11, 2010, Mr. Nguyen sent an email to his supervising deportation officer at the Agency, explaining that he could no longer file complaints or appear before a grand jury. The next month, on July 16, 2010, the Chief AUSA sent a letter to the Agency, confirming that Mr. Nguyen could no longer “testify or declare under oath in our criminal prosecutions.” J.A. 66 (“USAO Letter”). The USAO Letter stated that Mr. Nguyen's responsibilities as a Deportation Officer required him to be “free of any findings or investigations” that impaired his credibility. J.A. 66. It stated:

It has come to our attention that Officer Trong Nguyen was the subject of a 2007 investigation by the Department of Homeland Security, Immigration and Customs Enforcement, Office of Professional Responsibility in which four allegations against him were substantiated, including a charge that Officer Nguyen had displayed a “lack of candor in a police investigation.” That adverse finding unfortunately impairs Officer Nguyen's credibility as a witness. Accordingly, and notwithstanding our considerable regard and affection for Officer Nguyen, we must regretfully inform you that we cannot allow him to testify or declare under oath in our criminal prosecutions.

J.A. 66.

Following receipt of the USAO Letter, the Agency suspended Mr. Nguyen's authorization to carry a firearm on October 7, 2010. The Agency cited the USAO Letter and explained: “You will be provided with work that is administrative in nature which does not require that you be armed or may lead to you having to testify or swear under oath.” J.A. 67.

On November 8, 2010, the Agency issued a Notice of Proposed Removal for “Inability to Perform Full Range of Duties.” J.A. 62. The charge was based upon Giglio, 405 U.S. at 150, 92 S.Ct. 763, in which the Supreme Court required prosecutors to disclose when a testifying officer may lack credibility. The Notice of Proposed Removal alleged that the USAO had found Mr. Nguyen was Giglio impaired, thus preventing the USAO from using him as a witness in any criminal proceeding. The Agency said it could not “require or order the Department of Justice to use [Mr. Nguyen] as a witness.” J.A. 55.

The deciding official sustained the charge, but mitigated the proposed penalty of removal to a demotion to Detention and Removal Assistant. He rejected Mr. Nguyen's argument that the charge constituted impermissible double punishment for the same misconduct, stating he was neither “revisiting” the prior misconduct nor “using it as an aggravating factor.” J.A. 55. “The basis for this action is the [USAO Letter] issued by the Department of Justice and its impact upon [Mr. Nguyen's] ability to perform the full range of duties as a law enforcement officer.” J.A. 55.

The Administrative Judge (“AJ”) sustained the Agency's action, finding the Agency had proved that Mr. Nguyen was unable to perform the full range of his duties as a Deportation Officer.2 In particular, the AJ found that the USAO would not permit Mr. Nguyen to testify as a witness or make declarations under oath in federal criminal prosecutions, based on the USAO's Giglio determination. J.A. 23–24. Not only was Mr. Nguyen barred from testifying, but he was “no longer qualified to carry and/or discharge an agency firearm.” J.A. 25. Other coworkers thus had to take over these duties.

Mr. Nguyen petitioned the Board for review. The Board denied the petition and adopted the AJ's initial decision as the Board's final decision. Mr. Nguyen filed this timely appeal. This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012) and 5 U.S.C. §§ 7703(a)(1) and (b)(1) (2012).

Discussion
I.

This court must affirm the Board unless its decision is (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); Gibson v. Dep't of Veterans Affairs, 160 F.3d 722, 725 (Fed.Cir.1998).

The parties' dispute in this case centers on the effect of the USAO's determination that Mr. Nguyen was Giglio impaired and thus could not testify in criminal prosecutions. Mr. Nguyen argues the Agency was barred from taking adverse action in response to the USAO's Giglio determination, because that determination was based on Mr. Nguyen's earlier misconduct. The Agency, in turn, argues that it had no authority to challenge the USAO's Giglio determination, which was a separate and...

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