Federal Circuit Holds That An Employee Required to Testify in Court Can Be Removed or Demoted For Impaired Credibility, Even When A Lack Of Candor Charge Is Not Sustained

Trong Nguyen was a GS-12 Deportation Officer employed by the Department of Homeland Security (“DHS”) at the San Francisco Detention and Removal Operations Field Office.  He regularly worked with the United States Attorney’s Office (“USAO”) for the Northern District of California.  In connection with his job, he regularly testified in grand jury proceedings and in criminal prosecutions. 

In 2007, Mr. Nguyen was subject to an investigation conducted by the Office of Professional Responsibility (“OPR”) concerning how he had obtained a refrigerator at a significant discount.  In that interview, he admitted that he had previously made false statements during a law enforcement investigation.  On April 18, 2008, Mr. Nguyen received a notice of proposed removal setting forth five charges of misconduct:  (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.  Only charges three through five were sustained, and Mr. Nguyen’s proposed removal was mitigated to a fourteen day suspension.  Despite Mr. Nguyen’s admission that he had lied, the lack of candor charge was not sustained by the deciding official. 

In early 2010, when asked by the USAO to complete a disclosure form, Mr. Nguyen disclosed the 2008 personnel action.  As a result, the USAO learned that Mr. Nguyen had admitted to lying in a police investigation concerning how he had obtained a refrigerator at a discount.  The USAO informed DHS that Mr. Nguyen would no longer be allowed to testify in criminal proceedings due to his compromised credibility.  The USAO based this decision on Supreme Court precedent from the case Giglio v. United States, 405 U.S. 150 (1972), which requires that certain information which negatively impacts the credibility of a Government witness in a criminal case to be provided to the defense.  This decision not to allow Mr. Nguyen to testify in the future left him “Giglio impaired.” 

Upon learning of the Giglio impairment, DHS proposed to remove Mr. Nguyen based on his inability to perform his duties, because part of his duties were to testify in court and provide credible, sworn statements.  In 2011, DHS sustained the finding that Mr. Nguyen could no longer perform his former duties, but mitigated the penalty by demoting him to a position where he would not be required to testify in court or make sworn statements.  When Mr. Nguyen appealed his demotion, the Merit Systems Protection Board (“MSPB”) affirmed the demotion.  Mr. Nguyen then appealed to the United States Court of Appeals for the Federal Circuit. 

Mr. Nguyen’s appeal was based on arguments that the 2011 demotion decision was an impermissible “double punishment” and that he had been denied due process in his personnel action.

Regarding his “double punishment” argument, Mr. Nguyen asserted that he was demoted for the same reason underlying his 2008 discipline.  The court of appeals responded by noting that only the MSPB had found that double punishment was impermissible.  The court of appeals, which has a higher level of authority over the relevant federal personnel law and is not bound by MSPB decisions, had never made a finding that double punishment was impermissible.  Even so, the court of appeals explained that Mr. Nguyen was not being punished twice for the same matter; his 2008 discipline related to the manner in which he had obtained a refrigerator, amongst other things, while his 2011 demotion was based on his inability to testify in criminal proceedings, and thus his inability to perform his duties. 

Mr. Nguyen argued that DHS had already considered the possibility of Giglio impairment in 2008, and so there were no new grounds for discipline in the 2011 demotion.  The court of appeals disagreed, pointing out that despite what DHS might have considered in 2008, only the USAO can make determinations of Giglio impairment, and that the USAO simply had not made a Giglio determination until 2010. 

Mr. Nguyen also argued that in 2008, the lack of candor charged had not been sustained by the DHS deciding official, and so it should not serve as the basis for any action to remove or demote him later.  The court of appeals replied by noting that the USAO was not bound by DHS’s determination on the lack of candor charge.  Moreover, the USAO’s determination was not based on any substantiation or non-substantiation of the lack of candor charge; instead, it had made its finding entirely based on Mr. Nguyen’s admission to OPR that he had lied in a law enforcement interview, which left him unable to credibly testify on behalf of the Government. 

Mr. Nguyen also argued that he had been denied due process because he had no meaningful opportunity to contest the USAO’s determination that he was Giglio impaired.  The court of appeals replied that Mr. Nguyen had no right to challenge the discrete findings of an external Agency in this matter, and compared it to case precedent where employees were removed from federal service for inability to perform their duties after losing a driver’s license.  Once the external decision had been made, the only question for DHS to evaluate was whether or not Mr. Nguyen could still perform his duties.  Moreover, Mr. Nguyen had received advanced notice of the proposed action, secured counsel, and was successful in mitigating the removal action to a demotion, tending to indicate that he had received due process from DHS.

Accordingly, the court of appeals upheld the demotion based on the Giglio impairment. 

This case, Nguyen v. DHS, is available here.

This case law update was written by Michael S. Causey, associate attorney,Shaw Bransford & Roth, PC. 

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of private sector and federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update




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