Nguyen v. Department of Homeland Security , 737 F.3d 711 ( 2013 )

United States Court of Appeals
for the Federal Circuit
______________________
TRONG Q. NGUYEN,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
______________________
2013-3024
______________________
Petition for review of the Merit Systems Protection
Board in No. SF0752110502-I-1.
______________________
Decided: December 9, 2013
______________________
DAVID S. HANDSHER, Law Offices of David Handsher,
of San Francisco, California, argued for petitioner.
MICHAEL P. GOODMAN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respond-
ent. On the brief were STUART F. DELERY, Acting
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, 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
2 NGUYEN v. DHS
Security, Immigration and Customs Enforcement, of
Omaha, Nebraska.
______________________
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 admit-
ted to making false statements during a police investiga-
tion. 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. Ngu-
yen’s disciplinary history impaired his credibility as a
witness, pursuant to Giglio v. United States, 405 U.S. 150(1972). The USAO notified the Agency that it would no
longer allow Mr. Nguyen to testify in criminal prosecu-
tions 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.
NGUYEN v. DHS 3
BACKGROUND
Mr. Nguyen is an employee at the Agency’s San Fran-
cisco 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 prose-
cutors in apprehending and prosecuting aliens, and
participating in deportation and exclusion proceedings.
On April 18, 2008, the Agency issued a notice of pro-
posed 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 incon-
sistent 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 indi-
vidual 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
1 The record does not expressly state that Mr. Ngu-
yen remained an Agency employee during the pendency of
this appeal, but this court has not been informed other-
wise. In any event, Mr. Nguyen was employed at the
Agency during the time frame relevant to this appeal.
4 NGUYEN v. DHS
for the refrigerator purchase, and further admitted mak-
ing false statements during the police investigation.
Charge two alleged that Mr. Nguyen, without author-
ization, wrote a letter on the Agency’s letterhead to Jeff’s
mortgage company, and signed it using his title as Immi-
gration Information Officer. Charges three and four
alleged that Mr. Nguyen used law enforcement resources
to conduct queries on Jeff’s criminal history and immigra-
tion 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 Assis-
tant 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 infor-
mation, the Chief and Deputy Chief AUSAs told Mr.
Nguyen that the impeachment concerns it raised prevent-
ed Mr. Nguyen from swearing out complaints or testify-
ing.
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
NGUYEN v. DHS 5
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, Immigra-
tion and Customs Enforcement, Office of Profes-
sional 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 not-
withstanding our considerable regard and affec-
tion 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, in which the Supreme Court required prose-
cutors 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
6 NGUYEN v. DHS
“require or order the Department of Justice to use [Mr.
Nguyen] as a witness.” J.A. 55.
The deciding official sustained the charge, but miti-
gated the proposed penalty of removal to a demotion to
Detention and Removal Assistant. He rejected Mr. Ngu-
yen’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 Agen-
cy’s action, finding the Agency had proved that Mr. Ngu-
yen 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 wit-
ness 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 testify-
ing, but he was “no longer qualified to carry and/or dis-
charge 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
2 Mr. Nguyen moved for the AJ to subpoena the
Chief AUSA for deposition, arguing he had a due process
right to challenge the underlying Giglio determination.
The AJ denied Mr. Nguyen’s motion, holding the Agency
was not required to prove the merits of the USAO’s deci-
sion.
NGUYEN v. DHS 7
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 other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 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 prosecu-
tions. 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 adequate
basis for the Agency’s adverse action.
In Giglio, the Supreme Court held that criminal de-
fendants have a due process right to be informed of evi-
dence affecting a government witness’s credibility. Giglio,
405 U.S. at 154. It required that prosecutors establish
procedures to ensure that such exculpatory evidence is
identified and disclosed to the defendant. 3 Id.; see also
Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that
3 In Giglio, the Supreme Court reversed a convic-
tion and remanded for a new trial when the prosecutor
did not disclose to the defendant that a government
witness had been promised he would not be prosecuted if
he cooperated with the government. 405 U.S. at 153−54.
8 NGUYEN v. DHS
suppression of material exculpatory evidence justifies a
new trial “irrespective of the good faith or bad faith of the
prosecution”). Suppression of such impeachment evidence
requires a new trial if it could “in any reasonable likeli-
hood” have affected the jury’s judgment. Giglio, 405 U.S.
at 154 (internal quotation marks and citation omitted).
The Ninth Circuit has applied Giglio to hold that prosecu-
tors must examine personnel files of a law enforcement
witness they intend to call at trial for evidence affecting
the witness’s credibility. United States v. Henthorn, 931
F.2d 29, 30–31 (9th Cir. 1991); accord Milke v. Ryan, 711
F.3d 998, 1003−07 (9th Cir. 2013).
The USAO is responsible for ensuring compliance
with Giglio, and is not required to rely on a law enforce-
ment witness that it deems is Giglio impaired. See Giglio,
405 U.S. at 154 (stating that improper nondisclosure “is
the responsibility of the prosecutor”); see also Kahn v.
Dep’t of Justice, 528 F.3d 1336, 1340 n.4 (Fed. Cir. 2008)
(characterizing Giglio determinations as the prosecutor’s
responsibility). In this case, the USAO established proce-
dures pursuant to Giglio and Henthorn requiring that
Deportation Officers such as Mr. Nguyen must “be free of
any findings or investigations that impair their credibil-
ity.” J.A. 334. The USAO found Mr. Nguyen was Giglio
impaired based on his admission during the OPR investi-
gation that he made false statements to the police. 4
4 The USAO Letter stated that “Officer Trong Ngu-
yen was the subject of a 2007 investigation by the [OPR]
in which four allegations against him were substantiated,
including a charge that Officer Nguyen had displayed a
‘lack of candor in a police investigation.’” J.A. 66. Mr.
Nguyen suggests this statement is factually incorrect,
because the Agency did not substantiate the lack of can-
dor charge. The AJ found, however, that the USAO Letter
was “based on the underlying OPR Investigation,” in
NGUYEN v. DHS 9
The Agency lacked authority to force the USAO to al-
low Mr. Nguyen to testify or to otherwise challenge the
USAO’s Giglio determination. See Doe v. Dep’t of Justice,
95 M.S.P.R. 198, 205 (2003) (holding the Department of
Homeland Security lacks authority over United States
Attorney’s Offices); cf. City of Arlington v. Fed. Commc’ns
Comm’n, 133 S. Ct. 1863, 1869 (2013) (“Both [agencies’]
power to act and how they are to act is authoritatively
prescribed by Congress.”). The Agency thus had no obli-
gation to pass judgment on the underlying merits of the
USAO’s finding. Rather, it was entitled to take action
based on the undisputed effects of that finding—that Mr.
Nguyen could no longer testify as a witness during prose-
cutions or make declarations under oath. The Board
found this prohibition made Mr. Nguyen unable to per-
form the full range of his duties, and thus sustained the
Agency’s demotion. This finding is supported by substan-
tial evidence. The Agency’s position description for a
Deportation Officer states that the officer, inter alia,
“prepares documentation for Warrants of Arrest, War-
rants of Deportation, Breaches of Bond, Demands of
Surrender, Notices of Excludable Alien, etc.,” and
“[t]estifies on behalf of the [A]gency before Grand Juries.”
J.A. 317–18. The USAO’s Giglio determination prevents
Mr. Nguyen from performing these duties.
Mr. Nguyen argues the USAO’s Giglio determination
“did not constitute a separate and distinct act of miscon-
duct” and thus could not justify the Agency’s adverse
action. Pet’r’s Br. 18. However, an adverse action need
not be based on misconduct, but may be imposed “for such
which Mr. Nguyen admitted knowingly making false
statements during a police investigation, not on the later
Agency action in 2010. J.A. 29. This finding is consistent
with the USAO Letter’s reference to the 2007 OPR inves-
tigation, and is supported by substantial evidence.
10 NGUYEN v. DHS
cause as will promote the efficiency of the service.” 5
U.S.C. § 7513(a). The Board did not err in holding the
USAO’s Giglio determination made Mr. Nguyen unable to
perform the duties of a Deportation Officer, and that
demoting him to another position would “promote the
efficiency of the service.” See id.II.
Mr. Nguyen argues that, even if the Agency’s decision
is otherwise supported, it impermissibly subjected him to
double punishment for the same misconduct. The Board
has repeatedly held “an agency cannot impose discipli-
nary or adverse action more than once for the same mis-
conduct.” Gartner v. Dep’t of Army, 104 M.S.P.R. 463, 466
(2007) (citing Wigen v. U.S. Postal Serv., 58 M.S.P.R. 381,
383 (1993); Eichner v. U.S. Postal Serv., 83 M.S.P.R. 202,
¶ 17 (1999)). Mr. Nguyen does not argue that this court
has ever held “double punishment” is impermissible.
Rather, he says the Board has established a rule against
double punishment, and argues that “‘[a]n agency is
obligated to follow precedent, and if it chooses to change,
it must explain why.’” Pet’r’s Br. 11 (quoting M.M. & P.
Mar. Advancement, Training, Educ. & Safety Program v.
Dep’t of Commerce, 729 F.2d 748, 754–55 (Fed. Cir.
1984)). Even if we were to assume Mr. Nguyen’s premise
that we should set aside Board decisions that are incon-
sistent with prior Board authority, the Board’s decision in
this case is consistent with its precedent prohibiting
double punishment.
The Board found the 2011 demotion was based on the
USAO’s Giglio determination, whereas the 2008 suspen-
sion was based on Mr. Nguyen’s earlier misconduct in
connection with the Sears refrigerator. This finding is
supported by substantial evidence. In the 2011 action,
the Agency charged only that the USAO had made an
adverse Giglio determination, and would not use Mr.
Nguyen as a government witness in any criminal prosecu-
NGUYEN v. DHS 11
tion. For this reason, the Agency alleged Mr. Nguyen
would be unable to “perform the full range of duties” of a
Deportation Officer. J.A. 62. It did not mention Mr.
Nguyen’s earlier misconduct.
According to Mr. Nguyen, the Agency had already
considered the possibility of Giglio impairment in the
2008 action, so the USAO’s later adverse Giglio determi-
nation was not a justifiable basis to distinguish the 2011
adverse action. He argues: “In essence, the Agency chose
to discipline [Mr. Nguyen] in 2011 after it re-examined its
previous penalty determination for Petitioner’s miscon-
duct in light of the U.S. Attorney office’s July 16, 2010
letter.” Pet’r’s Br. 11. However, as discussed above, the
USAO, not the Agency, made the Giglio determination
forming the basis for the 2011 demotion. The Agency
thus did not “reexamine” its earlier finding, but rather
responded to the new development that Mr. Nguyen could
no longer testify in criminal prosecutions.
This situation is distinguishable from the cases Mr.
Nguyen cites, where an agency expressly based two
separate disciplinary actions on the same misconduct.
For instance, the Board found double punishment imper-
missible in Gartner, where the agency removed Ms.
Gartner for excessive absence based in part on absences
for which she had already been disciplined. Gartner, 104
M.S.P.R. at 466–67. Similarly, in Westbrook v. Depart-
ment of Air Force, 77 M.S.P.R. 149, 155 (1997), the agency
imposed two separate suspensions—one for seven days
and another for twenty-three days—to discipline Mr.
Westbrook for the same act of misusing his government-
owned vehicle.
This case is distinguishable. “[N]o Giglio impairment
issue was raised by the USAO” in the 2008 action, where-
as the 2011 action was based on the USAO’s finding that
Mr. Nguyen was Giglio impaired. J.A. 31. In sustaining
the charges, the Agency did not impliedly rely on the
12 NGUYEN v. DHS
underlying misconduct. Mr. Nguyen argues that “the
very fact that the misconduct was viewed in a new way or
was labeled as a different offense does not relieve the
Agency of the prohibition against disciplining an employ-
ee twice for the same misconduct.” Pet’r’s Br. 12. He
relies on the Board’s decision in Adamek v. U.S. Postal
Serv., 13 M.S.P.R. 224, 225–26 (1982), where the agency
removed Mr. Adamek for “failure to meet the essential
requirements of his position,” and charged in the notice
two incidents of unauthorized absence for which Mr.
Adamek had been previously disciplined. In contrast, the
Agency in this case demoted Mr. Nguyen because he could
no longer testify or swear out complaints, not because of
the earlier misconduct. The second adverse action was
not based on the same misconduct as the earlier 2008
action, and is not inconsistent with the Board’s cases
prohibiting double punishment.
III.
Finally, Mr. Nguyen argues the Agency violated his
right to due process by denying him a meaningful oppor-
tunity to respond to the charges brought against him. A
federal employee contesting an adverse action has the
right to notice and a meaningful opportunity to be heard.
Lachance v. Erickson, 522 U.S. 262, 266 (1998) (citing
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542
(1985)). Mr. Nguyen argues he “had no opportunity to
contest the determination of the U.S. Attorney’s office,”
and that the Agency therefore “deprived him of his fun-
damental right to due process of law by failing to provide
him a meaningful opportunity to oppose his demotion.” 5
5 Mr. Nguyen does not appear to contest that he
had prior notice of the USAO’s Giglio determination. The
AJ found that Mr. Nguyen was aware of the USAO’s
Giglio concern well before the Agency’s Notice of Proposed
Removal, and that it was Mr. Nguyen who first raised the
NGUYEN v. DHS 13
Pet’r’s Br. 12. He says the Agency should have provided
an “opportunity to confront the official to whom the Agen-
cy ceded responsibility,” namely, the Chief AUSA who
was responsible for the USAO letter. Reply. Br. 10–11.
The Agency provided Mr. Nguyen with the opportuni-
ty to contest his demotion. It notified him of the proposed
removal and gave him thirty days to reply to the deciding
official. Mr. Nguyen obtained counsel and responded
orally to the deciding official, who mitigated the proposed
removal to a demotion. 6 The Agency was not authorized
to alter or challenge the USAO’s Giglio determination,
and thus was not required to hear testimony by the Chief
AUSA regarding the basis for that decision. The only
question for the Agency was whether the USAO’s Giglio
determination made Mr. Nguyen unable to fulfill the
requirements of his position.
This situation is analogous to cases where a third-
party agency revokes a credential or qualification neces-
sary to perform the employee’s position. In such cases,
the Board takes the independent agency’s action at face
value, and reviews the employing agency’s response to
that action. For instance, in Shoffner v. Department of the
Interior, 9 M.S.P.R. 265, 267 (1981), the agency removed
Mr. Shoffner for failing to remain qualified for his position
as a Hydrologic Technician due to a one-year revocation of
his driver’s license. The Board did not consider whether
Giglio issue with his Agency supervisors after the USAO
inquired into his disciplinary history.
6 The Agency also heard Mr. Nguyen’s arguments
challenging the USAO’s Giglio determination. See J.A.
77–87. In particular, Mr. Nguyen’s counsel argued “that
the U.S. Attorney . . . is proceeding on false—on false
information. I don’t think you can impeach a person for
allegations that were brought against him that were
found not to be substantiated.” J.A. 81.
14 NGUYEN v. DHS
or not the revocation was correct, but rather reasoned
that removal was appropriate because Mr. Shoffner “could
no longer operate a government motor vehicle because the
possession of a valid state motor vehicle operator’s license
was a prerequisite to the operation of the government
vehicle.” Id. This made Mr. Shoffner unable to perform
his duties as a Hydrologic Technician, “which required
driving a vehicle alone approximately 1,000 miles per
month.” Id.; see also Penland v. Dep’t of Interior, 115
M.S.P.R. 474, 476 (2010) (affirming the agency’s removal
of a pilot who failed to maintain his pilot authorization). 7
Mr. Nguyen argues that this case is not analogous to
a licensing situation, because his position does not require
a license. Additionally, unlike the public standards for
obtaining a driver’s license, Mr. Nguyen argues the
USAO’s Giglio determination “is devoid of any objective
standard and stands essentially without sufficient articu-
lation or explanation.” Reply Br. 15. However, Mr. Ngu-
yen’s position as a Deportation Officer expressly requires
testifying and swearing out complaints, and the USAO’s
Giglio determination prevents him from performing these
7 This case differs from situations where the agency
itself decides to revoke a necessary credential. In those
cases, the Board typically reviews the underlying decision
to, e.g., revoke medical certification or procurement
authority. See, e.g., McGillivray v. Fed. Emerg. Mgmt.
Agency, 58 M.S.P.R. 398 (1993) (agency revoked procure-
ment authority); Siegert v. Dep’t of the Army, 38 M.S.P.R.
684 (1988) (agency revoked clinical privileges); Cosby v.
Fed. Aviation Admin., 30 M.S.P.R. 16 (1986) (agency
revoked medical certification); but see Kaplan v. Conyers,
No. 2011-3207, 2013 WL 4417583, (Fed. Cir. Aug. 20,
2013) (en banc) (Board lacks jurisdiction to review agen-
cy’s finding that an employee is ineligible to occupy non-
critical sensitive position).
NGUYEN v. DHS 15
duties. As in third-party licensing situations, the Agency
lacks authority to contest the USAO’s decision. The
Board did not err in holding the Agency did not violate
Mr. Nguyen’s due process rights.
CONCLUSION
For the foregoing reasons, the Board’s decision affirm-
ing the Agency’s demotion of Mr. Nguyen is affirmed.
AFFIRMED