Otherson v. Department of Justice, I.N.S.

Citation228 U.S.App.D.C. 481,711 F.2d 267
Decision Date21 June 1983
Docket NumberNo. 82-1991,82-1991
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Petition for Review of an Order of the Merit Systems protection board.

Gordon P. Ramsey, Boston, Mass., of the bar of the Supreme Court of Massachusetts pro hac vice by special leave of Court, for petitioner.

John S. Koppel, Atty., Dept. of Justice, Washington, D.C., with whom Stanley S. Harris, U.S. Atty., and Robert S. Greenspan, Atty., Dept. of Justice, Washington, D.C., were on the brief, for respondent. Evangeline W. Swift, Washington, D.C., Atty., Merit Systems Protection Bd., also entered an appearance for respondent.

Before EDWARDS, Circuit Judge, and McGOWAN and MacKINNON, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge McGOWAN.

McGOWAN, Senior Circuit Judge:

Jeffrey Otherson formerly worked as a border patrol agent for the Immigration and Naturalization Service (INS). INS discharged him after he and a co-worker received criminal convictions for physically abusing aliens according to a prearranged scheme they carried out during working hours with apparent zest. When Otherson appealed his discharge, the Merit Systems Protection Board (MSPB) held that the doctrine of issue preclusion, also known as collateral estoppel, forbade him from relitigating the facts established at the criminal trial. It also found discharge appropriate given the nature of Otherson's misconduct.

On review of this order, we are asked to resolve three questions: (1) whether issues determined at prior criminal trials may ever be preclusively established at later MSPB adverse action hearings; (2) whether the MSPB properly found preclusion appropriate in the particular circumstances of this case; and (3) whether discharge was an appropriate sanction for Otherson's misconduct. We answer all three questions in the affirmative and thus deny Otherson's petition for review.


On September 24, 1979, the government filed criminal charges against Otherson and three other INS agents for systematically mistreating aliens on July 3 and 4, 1979. The four counts applicable to Otherson alleged a conspiracy to defraud the United States in violation of 18 U.S.C. § 371 (1976), and deprivation under color of law of the rights of inhabitants of California in violation of 18 U.S.C. § 242 (1976). After eight days of trial, resulting in approximately 1,500 pages of transcript, and six days of jury deliberation, the jury was deadlocked eleven to one in favor of conviction, and the judge granted a mistrial. Appendix ("App.") 65; Administrative Record 56.

After the mistrial the parties agreed to proceed as follows. First, the government agreed to drop the felony charge from the first trial alleging conspiracy to defraud the United States. See App. 15. Accordingly, on January 29, 1980, the government filed a two-count superseding information charging Otherson and another agent with misdemeanor federal offenses. It alleged that they had deprived aliens of federal rights in violation of 18 U.S.C. § 242 (1976), 1 and had conspired to effect this deprivation in violation of 18 U.S.C. § 371 (1976). 2 The offending conduct involved several instances of on-duty physical assaults against aliens according to a prearranged scheme. The details of the defendants' conduct are set forth in the Ninth Circuit's affirmance of their ultimate conviction, United States v. Otherson, 637 F.2d 1276, 1277-78 (9th Cir.1980), cert. denied, 454 U.S. 840, 102 S.Ct. 149, 70 L.Ed.2d 123 (1981).

Second, the parties agreed to proceed without a jury on the basis of a stipulated record. The parties stipulated that if six of the government's witnesses were recalled, they would testify on both direct and cross-examination 3 as they had at the first trial. The parties also stipulated that three of the government's exhibits be admitted into evidence and considered by the court. The stipulation, did not, however, introduce any of the testimony or evidence the defendants introduced at the first trial. This was at least one of the concessions that induced the government to reduce the charges to misdemeanor offenses.

On March 17, 1980, the trial judge found both defendants guilty on both counts. He fined Otherson $1,000 for one count, and suspended sentence on the other, placing Otherson on three years' probation and ordering him to perform 750 hours of community service. Otherson appealed to the Ninth Circuit, arguing (1) that aliens are not "inhabitants" of a state within the meaning of 18 U.S.C. § 242 (1976); and (2) that the statute does not apply to actions under color of federal law, but only those under color of state law. On November 6, 1980, the court of appeals rejected both arguments, United States v. Otherson, 637 F.2d 1276 (9th Cir.1980), and the Supreme Court later denied certiorari, 454 U.S. 840, 102 S.Ct. 149, 70 L.Ed.2d 123 (1981).

On June 2, 1980, INS removed Otherson from his job effective June 13, 1980, having notified him of its proposal to do so on February 28. 4 INS cited Otherson's mistreatment of aliens as the reason for removal and specified the same acts of misconduct contained in the superseding information on which Otherson had been convicted. Otherson appealed his removal to the MSPB. At a hearing before a presiding official, the INS bore the burden of proving beyond a preponderance of the evidence, 5 U.S.C. § 7701(c)(1)(B) (Supp. V 1981), that Otherson's removal would "promote the efficiency of the [federal] service," id. § 7513(a). INS relied on Otherson's criminal conviction to prove that he had in fact committed the specified misconduct. In addition, it offered the testimony of the INS official who removed Otherson. The official testified that he reviewed the record of the criminal proceedings and that the seriousness of Otherson's criminal acts made removal appropriate. App. 29-30.

The presiding official affirmed Otherson's removal. App. 63-75. First, she rejected Otherson's contention that prior judicial determinations could never preclusively establish issues in MSPB hearings, citing the Board's decision in Chisholm v. Defense Logistics Agency, 3 M.S.P.B. 273 (1980), aff'd, 656 F.2d 42 (3d Cir.1981). Second, after reviewing the entire record of the criminal trials, she found that the factual issues of misconduct in the adverse action hearing were identical to those in the criminal proceeding, and that they had been actually litigated and necessarily determined at the criminal trial. Accordingly, she found preclusion appropriate for those issues and refused to consider Otherson's attempts to deny he had in fact mistreated aliens. App. 72. Finally, she concluded that removal would promote the efficiency of the service, commenting that the agency could not tolerate such visible and flagrant violations of law. Otherson then sought review of the presiding official's decision by the full MSPB. The Board denied the petition, stating that the MSPB "is entitled to rely on the doctrine of collateral estoppel, and finds that the doctrine was properly applied by the presiding official in [this] case[ ]." App. 77.

Finally, Otherson sought review of the MSPB's final decision in this court. 5 He presses before us the three major contentions he raised before the presiding official. First, he argues that an employee's statutory right to a hearing in appeals to the MSPB makes issue preclusion inappropriate. Second, he argues that the doctrine of issue preclusion, even if applicable in MSPB hearings, does not bar relitigation given the particular circumstances of the criminal conviction. Finally, he argues that discharge was not an appropriate sanction. We address and reject each contention in turn.


Courts have often held that issues determined in connection with a criminal conviction may be taken as preclusively established for the purposes of later civil trials. See Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 568-69, 71 S.Ct. 408, 413-14, 95 L.Ed. 534 (1951); McCord v. Bailey, 636 F.2d 606, 608-11 (D.C.Cir.1980), cert. denied, 451 U.S. 983, 101 S.Ct. 2314, 68 L.Ed.2d 839 (1981). Courts have less frequently addressed, however, the effect of criminal convictions or other judicial determinations in later administrative proceedings. Otherson claims that the judicial doctrine of issue preclusion has no place in MSPB hearings. Squarely against his contention, however, is a recent holding of the Third Circuit in Chisholm v. Defense Logistics Agency, 656 F.2d 42 (3d Cir.1981). We find the Chisholm court's reasoning persuasive and thus hold that issues determined in a criminal conviction may be accorded preclusive effect at a later MSPB adverse action hearing if the normal standards for preclusion are satisfied.

Congress established the MSPB as "a quasi-judicial body." S.REP. NO. 969, 95th Cong., 2d Sess. 24 (1978). U.S.Code Cong. & Admin.News 1978, 2723. As the Third Circuit held,

the same policy reasons which underlie use of collateral estoppel in judicial proceedings are equally applicable when the administrative board acts as an adjudicatory body. It is well established that the doctrine of collateral estoppel contributes to efficient judicial administration, serving the public interest in judicial economy as well as the parties' interests in finality, certainty of affairs and avoidance of unnecessary relitigation.

Chisholm, 656 F.2d at 46. It should be remembered also that issue preclusion is appropriate in only certain circumstances and is subject to important exceptions to prevent unfairness. See generally RESTATEMENT (SECOND) OF JUDGMENTS §§ 27-29 (1982). Indeed, even as the Third Circuit held the principles of preclusion appropriate in MSPB hearings, it remanded the Chisholm case for the MSPB to inquire more...

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