Clay Martin v. Department of Homeland Security

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CLAY MARTIN,
Petitioner
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent
______________________
2020-1810
______________________
Petition for review of an arbitrator's decision by Sam-
uel Vitaro.
______________________
Decided: May 5, 2021
______________________
CLAY M ARTIN , Macomb, MI, pro se.
RUSSELL JAMES UPTON , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by JOHN V.
COGHLAN , ROBERT E DWARD K IRSCHMAN , JR., FRANKLIN E.
WHITE, J R.
______________________
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MARTIN v. DHS 2
Before TARANTO , BRYSON , and CHEN , Circuit Judges.
PER C URIAM.
Clay Martin was removed from his position as a Depor-
tation Officer with the United States Immigration and
Customs Enforcement (ICE or Agency) in the Department
of Homeland Security in October 2018, based on four
charges: conduct unbecoming a law enforcement officer,
unauthorized use of a government database, unauthorized
use of an agency resource, and lack of candor. Mr. Martin
and the American Federation of Government Employees,
Local 46 (the Union) invoked arbitration following removal.
An arbitrator affirmed the Agency’s decision, finding that
all four charges were supported by the evidence and the
penalty of removal reasonable. S.A. 1–46. We affirm.
I
A
Mr. Martin began working for ICE in August 2008, and
he eventually became a Deportation Officer, a GS-12 posi-
tion, in the Detroit Field Office. S.A. 2. His removal stems
from events that began on the evening of May 18, 2017,
when Mr. Martin was off duty and driving in his personal
vehicle in Macomb Township, Michigan, with his 10-year-
old son. The prelude to the disputed aspects was Mr. Mar-
tin driving on a road when a car, driven by Donald Van-
Zile III, merged into Mr. Martin’s lane very closely in front
of him. S.A. 2. According to a traffic-camera video, Mr.
Van-Zile braked, and Mr. Martin braked behind Mr. Van-
Zile’s car. S.A. 2, 71. Mr. Van-Zile then turned right into
an apartment complex and stopped his car in the driveway.
S.A. 2, 71. Mr. Martin soon stopped behind Mr. Van-Zile’s
car, though he testified that he did not purposely follow Mr.
Van-Zile into the driveway; instead, he asserted, his car
slid into the driveway after he braked on the road. See S.A.
2, 244, 362–63.
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MARTIN v. DHS 3
According to Mr. Martin, Mr. Van-Zile immediately
jumped out of his vehicle and ran toward Mr. Martin while
yelling. Mr. Martin left his vehicle and confronted Mr.
Van-Zile—in an attempt, in Mr. Martin’s version, to protect
himself and his son. See S.A. 3, 134, 244, 273–74. Then he
escorted Mr. Van-Zile, without force, back to Mr. Van-Zile’s
car and ordered him to get in and turn off the engine. See
S.A. 3, 193, 246, 339, 344. Mr. Van-Zile sat down in his
driver’s seat but refused to turn off the engine, and Mr.
Martin reached into the vehicle through the open driver
door to try to turn off the engine himself. S.A. 3, 344–45.
But before the engine could be turned off, Mr. Van-Zile,
again in Mr. Martin’s version, accelerated his car, dragging
Mr. Martin a few feet before he fell out of the vehicle
through the still-open door. S.A. 3, 193, 346–48, 363–64,
371. Mr. Martin further recalled that he believed Mr. Van-
Zile was intoxicated because he smelled alcohol. See S.A.
3, 193.
Mr. Van-Zile recalled the events somewhat differently,
and the arbitrator credited his recollection. S.A. 3; see also
S.A. 111–28, 199–218. According to Mr. Van-Zile, after he
stopped his car in the driveway, Mr. Martin approached
him. See S.A. 116, 202–05. While Mr. Van-Zile was open-
ing the door to his car, Mr. Martin allegedly grabbed his
arm and pushed him back into the vehicle. See S.A. 117–
19, 202–05. Mr. Van-Zile claims that he then tried to get
away from Mr. Martin but denies “dragging” Mr. Martin.
See S.A. 209–11.
Mr. Martin then returned to his vehicle and called 911.
S.A. 4, 78. Thereafter, Mr. Martin called his supervisor
Ken Watson, as well as ICE attorney Tim McDonald. S.A.
4. According to Mr. Martin, Mr. McDonald instructed him
to take steps to identify the other driver; Mr. Martin then
logged into an agency database, Consolidated Lead Evalu-
ation and Reporting (CLEAR), to “run” the license number
on Mr. Van-Zile’s car and obtain his home address. S.A. 5–
6, 303–05. Mr. McDonald, however, denied authorizing
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MARTIN v. DHS 4
Mr. Martin to use government resources to gather infor-
mation about Mr. Van-Zile. See S.A. 5 n.3, 233–37.
Deputies Nicholas Macioce and Anthony Szalkowski of
the Macomb County Sheriff’s Office then arrived on the
scene. S.A. 6. On recordings from their body cameras, Mr.
Martin can be heard telling them, in his account of the pre-
ceding events, that he “grabbed” Mr. Van-Zile by the arm,
took him back to Mr. Van-Zile’s vehicle, and told him to sit
down and shut his engine off; that he asked for Mr. Van-
Zile’s identification; and that he believed Mr. Van-Zile was
intoxicated. See S.A. 6, 89–90. In his interaction with the
deputies, Mr. Martin grew upset with Deputy Macioce,
partly due to a previous incident between the two, involv-
ing Mr. Martin’s stepdaughter. See S.A. 7. Mr. Martin also
had some conflict with Deputy Szalkowski, who advised
Mr. Martin several times to return to his vehicle, which he
refused to do. S.A. 7, 152–54.
On the following day, Mr. Martin accessed the National
Criminal Information Center (NCIC) database, which re-
quired him to first log into the Agency’s Treasury Enforce-
ment Communication System (TECS), to conduct a record
inquiry for Mr. Van-Zile. S.A. 8–9, 590. Both databases
are for official use only. See S.A. 9.
In September 2017, Mr. Martin submitted a complaint
to the Malcomb County Sheriff’s Office regarding the police
report that Deputy Macioce prepared about the events of
May 18, 2017. S.A. 219–22; see also S.A. 188–92 (police re-
port). In his complaint, Mr. Martin disputed the facts
listed in the police report and noted that some of his actions
on May 18, i.e., running Mr. Van-Zile’s license plate and
speaking with Mr. Van-Zile’s spouse, were in service of the
“federal investigation” into Mr. Van-Zile “that was under-
way.” S.A. 219–20.
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MARTIN v. DHS 5
B
On June 1, 2017, the Deputy Field Office Director for
the Detroit Field Office of ICE reported Mr. Martin’s
May 18 incident to the Agency’s Joint Intake Center. S.A.
196–97. The Agency’s Office of Professional Responsibility
then investigated. S.A. 11. After the investigation, which
included an interview of Mr. Martin in January 2018, the
Deputy Field Office Director proposed removing Mr. Mar-
tin based on four charges: conduct unbecoming a law en-
forcement officer, unauthorized use of a government
database, unauthorized use of an agency resource, and lack
of candor. S.A. 609–19 (Notice of Proposed Removal). On
October 16, 2018, the Field Office Director, Rebecca Ad-
ducci, sustained all the charges and underlying specifica-
tions and decided on removal as the penalty. S.A. 47–64.
The Union invoked arbitration, and a hearing was held
on June 11, 2019, during which both Mr. Martin and Ms.
Adducci testified in person. S.A. 17, 69. Written closing
arguments were submitted on August 12, 2019. S.A. 1.
On February 23, 2020, the arbitrator issued his opin-
ion, sustaining all four charges for removal but finding that
not all underlying specifications were proven by a prepon-
derance of the evidence. S.A. 1, 19–36. The arbitrator also
upheld removal as a reasonable penalty to promote the ef-
ficiency of the service. S.A. 36–44.
Mr. Martin timely appealed. We have jurisdiction un-
der 5 U.S.C. §§ 7703(b)(1)(A) and 7121(f).
II
A federal employee may challenge disciplinary action
taken by an employer by appealing to the Merit Systems
Protection Board or by seeking arbitration under a griev-
ance procedure established by a collective bargaining
agreement. See 5 U.S.C. § 7121(e)(1). Here, Mr. Martin
invoked arbitration. We review the arbitrator’s decision
“under 5 U.S.C. § 7121(f) using the same standard of
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MARTIN v. DHS 6
review that applies to appeals from decisions of the
[Board].” Buffkin v. Dep’t of Defense, 957 F.3d 1327, 1329
(Fed. Cir. 2020).
Thus, we must uphold the arbitrator’s decision unless
we conclude it is “arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law,” was “ob-
tained without procedures required by law, rule, or
regulation having been followed,” or is “unsupported by
substantial evidence.” 5 U.S.C. § 7703(c); see also Buffkin,
957 F.3d at 1329–30. On factual questions, we do not “sub-
stitute our judgment for that of the [arbitrator],” Whitmore
v. Dep’t of Labor, 680 F.3d 1353, 1366 (Fed. Cir. 2012), but
ask only if, on all the evidence, the arbitrator’s findings
were reasonable, even if contrary findings might also have
been reasonable, see Jones v. Dep’t of Health & Hum.
Servs., 834 F.3d 1361, 1366 (Fed. Cir. 2016).
A
As an initial matter, Mr. Martin argues that the arbi-
trator’s decision was untimely for failure to comply with
the deadlines listed in the collective bargaining agreement
that governs the arbitration. Martin Opening Br. at 2–3.
The agreement outlines an “expedited procedure” in mat-
ters involving removal, in which “the parties have agreed
to ask the arbitrator to adhere to the following time lines”:
“Arbitrators are to render a decision within fifteen (15)
workdays of closing of the record. The record will be con-
sidered closed upon receipt of briefs, receipt of transcript,
or completion of hearing whichever is later.” Pet. Appx. 70.
Mr. Martin argues that the deadline for the arbitrator to
render his decision was September 3, 2019, 15 workdays
after the submission of written closing arguments on Au-
gust 12, 2019. Martin Opening Br. at 2–3. But the collec-
tive bargaining agreement does not set a firm deadline; it
simply “ask[s] the arbitrator to adhere” to a “time line[].”
Pet. Appx. 70. When an agreement “specifies no conse-
quence for failure to observe” a deadline, it is “merely a
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MARTIN v. DHS 7
housekeeping rule” that is not binding on the parties. Mul-
ler v. Gov’t Printing Off., 809 F.3d 1375, 1382 (Fed. Cir.
2016).
B
1
To prove Charge 1 (conduct unbecoming a law enforce-
ment officer), it sufficed for the Agency to prove the alleged
misconduct, as long as the proof of the specification, given
in narrative form, shows that the conduct adversely affects
efficiency of the service. See Otero v. U.S. Postal Serv., 73
M.S.P.R. 198, 202–03 (1997); see also Abruzzo v. Social Se-
curity Admin., 489 F. App’x 449, 454 (Fed. Cir. 2012) (per
curiam) (describing unbecoming conduct as “conduct that
revealed a temperament that detracted from character or
reputation” (internal quotation marks omitted)). If the
Agency has alleged multiple specifications to support its
charge, “‘proof of one or more, but not all, of the supporting
specifications is sufficient to sustain the charge.’”
Lachance v. Merit Sys. Prot. Bd., 147 F.3d 1367, 1371 (Fed.
Cir. 1998) (quoting Burroughs v. Dep’t of the Army, 918
F.2d 170, 172 (Fed. Cir. 1990)). The arbitrator reasonably
found that the Agency proved Charge 1 upon finding that
the Agency proved seven of the ten specifications support-
ing it.1
Specification 1 alleged that Mr. Martin tried to engage
in “police action” while accompanied by a minor, i.e., his 10-
year-old son. S.A. 20. Mr. Martin, who does not dispute
that his minor son was present for the interactions with
Mr. Van-Zile on May 18, 2017, argues that he was not en-
gaged in a “police action” then, because he equates “police
action” with using “police power,” which he defines as
1 The arbitrator determined that Specifications 2, 7,
and 10 were either not proven or did not meet the standard
of unbecoming conduct. See S.A. 23, 26–27, 29.
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MARTIN v. DHS 8
exercising the “sovereign right of a government.” Martin
Opening Br. at 10–11 (citing Police power, Black’s Law Dic-
tionary (6th ed. 1990)). The arbitrator reasonably found
that the Agency proved this specification: In his September
2017 complaint to the Macomb County Sheriff’s Office, Mr.
Martin stated that he was “attempting to take police ac-
tion” against Mr. Van-Zile. S.A. 219 (emphasis added); see
also S.A. 241 (Mr. Martin describing during his Agency in-
terview the interaction with Mr. Van-Zile as a “traffic
stop”). Substantial evidence, therefore, supports the arbi-
trator’s finding that Mr. Martin attempted to engage in a
police action while accompanied by a minor, which was
“conduct unbecoming a law enforcement officer.” S.A. 23.
Specifications 3, 4, 5, and 6 all involve Mr. Martin’s be-
havior toward Mr. Van-Zile having the character of exer-
cising official authority—namely, he grabbed Mr. Van-Zile
(Specification 3), told him to “sit down and shut your car
off” (Specification 4), instructed him to provide identifica-
tion (Specification 5), and reached into the car from the
driver’s side to turn the car off (Specification 6)—while Mr.
Martin was not engaged in official Agency duties. S.A. 24–
26. The arbitrator reasonably found that the Agency
proved the allegation in each of these specifications. In do-
ing so, the arbitrator found Mr. Martin’s testimony about
what transpired to be less credible than Mr. Van-Zile’s
written testimony. S.A. 21. This evaluation of witness
credibility is entitled to great deference on appeal.2 King
2 Mr. Martin argues that the arbitrator’s credibility
determination as to Mr. Van-Zile’s written testimony is not
afforded any deference because Mr. Van-Zile did not testify
in person. But the deference to credibility findings is not
limited to live testimony. See Joseph v. Dep’t of Homeland
Security, 497 F. App’x 26, 29 (Fed. Cir. 2012) (per curiam).
The arbitrator also found Mr. Martin to be a less than
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MARTIN v. DHS 9
v. Dep’t of Health & Hum. Servs., 133 F.3d 1450, 1453 (Fed.
Cir. 1998).
Substantial evidence supports the arbitrator’s finding
as to these specifications. First, although Mr. Martin ar-
gues that the record does not show that he “grabbed” Mr.
Van-Zile, Mr. Martin admitted to the deputies, on May 18,
2017, that he “grabbed” Mr. Van-Zile by the arm. S.A. 90.
Next, it is undisputed that Mr. Martin instructed Mr. Van-
Zile to sit in and shut off his car. S.A. 24. Mr. Martin ar-
gues, however, that his actions were warranted because
Mr. Van-Zile was allegedly impaired by alcohol at the time.
But the arbitrator noted evidence from the police report
that Mr. Van-Zile “did not show any indication of being in-
toxicated.” S.A. 191; see also S.A. 124–25 (Mr. Van-Zile
stating that he had “a few beers” during lunch, roughly
seven hours before the incident). As for the next specifica-
tion, Mr. Martin denies requesting identification from Mr.
Van-Zile, but Mr. Martin admitted to the deputies that he
requested Mr. Van-Zile’s identification. S.A. 90 (“Give me
your ID.”). Finally, it is undisputed that Mr. Martin
reached into Mr. Van-Zile’s car to turn the car off. See S.A.
287, 345. Mr. Martin again argues that his actions were
warranted, but this argument fails given the arbitrator’s
finding that the evidence did not support Mr. Van-Zile’s al-
leged intoxication. The arbitrator determined that Mr.
Martin was not authorized to take any of these actions and
exhibited “extremely poor judgment, especially for a law
enforcement officer.” See S.A. 24–26. Substantial evi-
dence, therefore, supports the arbitrator’s finding that Mr.
Martin’s behavior toward Mr. Van-Zile was conduct unbe-
coming a law enforcement officer.
Specification 8 involves Mr. Martin’s interaction with
Deputy Macioce, in which Mr. Martin suggested that he
credible witness based on, among other things, his “several
versions” of the events of May 18, 2017. S.A. 21.
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MARTIN v. DHS 10
should have been given preferential treatment in a prior
incident involving his stepdaughter, before body cameras
were required. S.A. 27–28. Mr. Martin does not deny mak-
ing the statements at issue, but he argues that his private
conversation with Deputy Macioce cannot constitute ac-
tionable misconduct. We have held that “off-duty conduct
that is inconsistent with the agency’s mission and that un-
dermines confidence in the employee can be sufficient to
justify the employee’s removal.” Brown v. Dep’t of the
Navy, 229 F.3d 1356, 1361 (Fed. Cir. 2000). Here, Field
Office Director Adducci credibly testified that Mr. Martin’s
comment to Deputy Macioce indicated that “if you’re not on
a body camera, if you’re not being watched, it would be okay
to break the rules.” S.A. 27–28; see also S.A. 49 (“[T]his
was an exchange in which you chastised Deputy Macioce
for not giving you preferential treatment, or discretion in
your favor, because he could have done so without fear of
repercussion since ‘there were no body cameras back
then.’”). Therefore, substantial evidence supports the arbi-
trator’s finding that Mr. Martin’s statements were unbe-
coming a law enforcement officer.
Specification 9 alleged that Mr. Martin refused to go
back to his vehicle after being ordered to do so by one of the
deputies approximately ten times. S.A. 28. The arbitra-
tor’s finding that Mr. Martin failed to obey this request is
supported by body-camera video. See S.A. 152–54. Mr.
Martin argues that he could not have taken the request se-
riously and, in any event, this incident was a wholly private
conversation that cannot rise to actionable misconduct.
The arbitrator found that the deputy’s request was reason-
able given the circumstances, see S.A. 28–29, and, as stated
above, off-duty conduct can warrant removal, see Brown,
229 F.3d at 1361. Substantial evidence, therefore, sup-
ports the arbitrator’s finding that Mr. Martin acted in a
manner unbecoming a law enforcement officer.
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MARTIN v. DHS 11
2
To prove the charge of unauthorized use of a govern-
ment database (Charge 2), it sufficed for the Agency to
prove that Mr. Martin used a government database, NCIC,
without authorization.3 See Sphatt v. Dep’t of Homeland
Security, No. 2020-1451, 2021 WL 1291148, at *4 (Fed. Cir.
Apr. 7, 2021); Hernandez v. Dep’t of Homeland Security,
324 F. App’x 908, 910 (Fed. Cir. 2009) (per curiam); see also
5 C.F.R. § 2635.704(a). The arbitrator reasonably found
that the Agency so proved.
Mr. Martin does not dispute that he logged into the
NCIC database to search for records about Mr. Van-Zile;
nor does he dispute that NCIC access is allowed only in
connection with official duties. See S.A. 29. Instead, Mr.
Martin argues that he was authorized to make the search
because he reasonably believed Mr. Van-Zile may be the
subject of a federal investigation for his alleged assault on
Mr. Martin, a federal officer, after Mr. Martin was dragged
by Mr. Van-Zile’s car; Mr. Martin notes that, at the time he
made the search, he “could have reasonably believed that
[Assistant U.S. Attorney] McDonald would be handling the
case.” Martin Opening Br. at 19–20; see also S.A. 657–58
(Mr. Martin stating during the hearing that he spoke with
Mr. McDonald, who “said I need to do whatever I can to
identify [Mr. Van-Zile] so that we know who he is”). This
argument fails: The Agency presented substantial evidence
that Mr. Martin lacked authorization to use the database
as he did and did not have reason to believe, after his con-
versation with Mr. McDonald, that any federal investiga-
tion would be opened into Mr. Van-Zile. According to an
affidavit from Mr. McDonald, when asked if Mr. Van-Zile
3 The arbitrator found the first specification (that
Mr. Martin used the NCIC database) to be proven but
found the second specification (that Mr. Martin used the
TECS database) to be duplicative of the first. S.A. 29–31.
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MARTIN v. DHS 12
would be prosecuted, Mr. McDonald indicated to Mr. Mar-
tin that he “do[es] not make decisions on whether the U.S.
Attorney’s Office would accept a case for prosecution” and
stated that he was “uncomfortable advising on a matter
that [he] ha[d] not been assigned.” S.A. 236. Moreover,
when Mr. Martin spoke with his supervisor that evening,
Mr. Martin did not request, nor was he given, permission
to investigate the matter using agency databases. See S.A.
228–32.
The arbitrator’s decision to uphold Charge 2, we con-
clude, is supported by substantial evidence.
3
As with Charge 2, to prove Charge 3 of unauthorized
use of an agency resource, it sufficed for the Agency to
prove that Mr. Martin used the resource, the CLEAR data-
base, without authorization. See Hernandez, 324 F. App’x
at 910; see also 5 C.F.R. § 2635.704(a).
Mr. Martin does not dispute that he ran Mr. Van-Zile’s
license plate through the CLEAR database on May 18,
2017, but he again argues that he was told to obtain infor-
mation about Mr. Van-Zile for purposes of a potential fed-
eral prosecution. This argument fails for the reasons
stated above. Mr. Martin also argues that he was given
retroactive authorization to access the CLEAR database
based on a May 19, 2017 email from an Assistant U.S. At-
torney that told him to “prepare a detailed report of the in-
cident on an official form.” Pet. Appx. 104–05. The
arbitrator considered and denied this argument, noting
that “a reasonable law enforcement officer would have
sought specific authorization to use these privileged data-
bases” and that the email post-dated Mr. Martin’s access-
ing of the CLEAR database. S.A. 32 n.16.
The arbitrator’s upholding of Charge 3, we conclude, is
supported by substantial evidence.
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MARTIN v. DHS 13
4
To sustain Charge 4 (lack of candor), it sufficed for the
Agency to prove that Mr. Martin gave incorrect or incom-
plete information and did so knowingly. Ludlum v. Dep’t
of Justice, 278 F.3d 1280, 1284–85 (Fed. Cir. 2002). “Lack
of candor” is “a broader and more flexible concept” than
“falsification.” Id. at 1284. “Although lack of candor nec-
essarily involves an element of deception, ‘intent to deceive’
is not a separate element of that offense—as it is for ‘falsi-
fication.’” Id. at 1284–85. The Agency alleged that Charge
4 was supported by four specifications, of which the arbi-
trator found Specifications 1, 3, and 4 to be proven, while
finding Specification 2 to be duplicative of Specification 1.
S.A. 32–36. Substantial evidence supports sustaining
Charge 4.
The first specification relates to Mr. Martin’s interview
with the Agency’s Office of Professional Responsibility, in
which he testified that he never grabbed Mr. Van-Zile. S.A.
33–34; see also S.A. 246, 339. The arbitrator reasonably
found that Mr. Martin was not candid in his interview
when he stated only that he guided Mr. Van-Zile, despite
telling Deputy Macioce on the evening of the incident that
he “grabbed” Mr. Van-Zile. Compare S.A. 90 (“I grabbed
him [Mr. Van-Zile] right by the arm and kind of, you know,
a little come-along, you know, and I take him back to his
car . . . .”), with, e.g., S.A. 246 (“I just kind of put my arms
and -- and guide him. I never physically grabbed him. I
never dragged him. I didn’t -- there was no force involved,
it was, ‘Come on, let’s go to your car,’ and I put my arms
out and just kind of start walking, kind of corralled him
towards his car, you know?”), S.A. 339 (“I never grabbed
him. . . . I don’t not recall ever grabbing ahold of him. The
only thing I tried to grab -- I grabbed the steering wheel
when I leaned in and I tried to grab the keys. If I -- if I
touched him when he drove off, maybe. I don’t know. It
wasn’t intentional. . . . I don’t recall ever putting my hands
on him. I turned him around, said, ‘Let’s go. We need to
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MARTIN v. DHS 14
go.’”). Although Mr. Martin argues on appeal that the ar-
bitrator failed to distinguish between “touching,” which he
claims he admitted to during the interview, and “grab-
bing,” the arbitrator’s determination that Mr. Martin de-
nied or gave incomplete answers in response to questions
regarding his contact with Mr. Van-Zile—both touching
and grabbing—is supported by substantial evidence. See
S.A. 246, 339.
Specifications 3 and 4 relate to Mr. Martin’s September
2017 complaint with the Macomb County Sheriff’s Office,
in which he claimed that he “ran the plate” of Mr. Van-
Zile’s vehicle and spoke with Mr. Van-Zile’s spouse on
May 18, 2017, as part of a “federal investigation that was
underway.” S.A. 35–36 (internal quotation marks omit-
ted); see also S.A. 219–22 (complaint). Mr. Martin argues
that he did not knowingly mislead the Sheriff’s Office in
his complaint because he reasonably believed at the time
that he could pursue a federal investigation. This argu-
ment fails for similar reasons stated above: Based on his
conversations with his supervisor and Mr. McDonald, Mr.
Martin did not have reason to believe that he had authori-
zation to pursue a federal investigation into Mr. Van-Zile.
Moreover, an “intent to deceive” is not required to support
a charge of lack of candor. Ludlum, 278 F.3d at 1284–85.
The arbitrator’s upholding of Charge 4, we conclude, is
supported by substantial evidence.
C
To sustain an adverse employment action based on im-
proper conduct, an agency must establish not only that the
charged conduct occurred, but also that it was sufficiently
connected, i.e., establish a nexus, to the efficiency of the
government service, and that the penalty imposed was rea-
sonable. Hansen v. Dep’t of Homeland Security, 911 F.3d
1362, 1366 (Fed. Cir. 2018). Mr. Martin challenges the
finding of sufficient nexus to the efficiency of service, but
he does not argue that removal was an unreasonable
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MARTIN v. DHS 15
penalty. See Martin Opening Br. at 17–19; cf. DHS Re-
sponse Br. at 28.
The arbitrator found sufficient nexus to exist between
the off-duty misconduct and the efficiency of the service.
S.A. 18 n.14. This finding is supported by Field Officer Ad-
ducci’s credible testimony that Mr. Martin’s actions, on and
after May 18, 2017, resulted in his superiors losing trust in
him to do his job as a law-enforcement officer. See S.A. 715
(“Because of his lack of judgment, poor judgment he used
in bringing his child into this dangerous situation, because
he tried to curry favor from a law enforcement officer be-
cause of his position as a law enforcement officer, because
he lied to [the Office of Professional Responsibility], be-
cause he lied to me, because he lied to the Macomb County
Sheriff’s Department, because he thinks it’s okay to break
the rules if you don’t have a body camera. He doesn’t have
honesty. He doesn’t have integrity. I can’t trust him, and
he can’t work for ICE.” (internal quotation marks omit-
ted)); see also S.A. 44. The Board’s determination to credit
that testimony supports the nexus finding. See Brown, 229
F.3d at 1358–59 (“Absent a mistake of law by the Board in
selecting the proper test for analyzing the nexus require-
ment, which is not present here, we must uphold the
Board’s nexus finding if it is supported by substantial evi-
dence.”).
III
For the foregoing reasons, we affirm the arbitrator’s de-
cision.
AFFIRMED
COSTS
The parties shall bear their own costs.
Case: 20-1810 Document: 46 Page: 15 Filed: 05/05/2021

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