Trong Q. NGUYEN, Petitioner,
DEPARTMENT OF HOMELAND SECURITY, Respondent.
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.
Mr. Nguyen is an employee at the Agency's San Francisco Detention and Removal Operations Field Office. 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 ...