Stephen Marin v. Department of Homeland Security

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
STEPHEN MARIN,
Petitioner
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent
______________________
2024-1767
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-21-0089-I-1.
______________________
Decided: February 7, 2025
______________________
S TEPHEN MARIN, Winchester, CA, pro se.
L AURA O FFENBACHER ARADI, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, WILLIAM J. G RIMALDI, P ATRICIA M.
MCCARTHY .
______________________
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MARIN v. DHS 2
Before D YK and P ROST , Circuit Judges, and G OLDBERG,
Chief District Judge.1
P ER CURIAM .
Stephen Marin petitions for review of a final decision
of the Merit Systems Protection Board (“MSPB”) upholding
his removal from the Department of Homeland Security
Bureau of Immigration and Customs Enforcement (“the
agency”). Marin v. Dep’t of Homeland Sec., No. SF-0752-
21-0089-I-1 (M.S.P.B. Feb. 29, 2024) (“Final Decision”),
S.A. 36–43.2 For the following reasons, we affirm.
BACKGROUND
Mr. Marin began federal service in 1991 and served as
a Criminal Investigator since 2002. At the time of his re-
moval, Mr. Marin worked as a GS-1811-13 Criminal Inves-
tigator with the agency, which is a law enforcement officer
position. S.A. 52. GS-1811-13 Criminal Investigators are
expected to perform “[i]nvestigative [c]ase [w]ork,” “[p]re-
pare[] affidavits for court-approved search and seizure
warrants and electronic intercepts,” “assist[] the U.S. At-
torney, and testif[y] as a witness in judicial hearings or ad-
ministrative/courtroom trial proceedings.” S.A. 67–68.
This position also requires the Criminal Investigator to
have the “[a]bility to testify as a witness in a professional,
credible, articulate and consistent manner.” S.A. 70.
On July 10, 2020, the Assistant U.S. Attorney, Chief of
the Criminal Division, sent the Deputy Special Agent in
Charge at Homeland Security Investigations, a letter stat-
ing:
1 Honorable Mitchell S. Goldberg, Chief Judge,
United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
2 “S.A.” refers to the supplemental appendix in-
cluded with the government’s informal brief.
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MARIN v. DHS 3
[Mr.] Marin has engaged in conduct over the years
that makes it extremely difficult for [the agency] to
rely on him as a witness in any of our cases. His
conduct has led to him being prosecuted and disci-
plined, including for matters that directly relate to
his credibility.
S.A. 64 (“the July 10, 2020 Giglio letter”).3
The U.S. Attorney also recounted Mr. Marin’s discipli-
nary history and noted that from 2002 to 2004, Mr. Marin
misused government-owned vehicles, displayed his govern-
ment-issued firearm for unofficial purposes, and exhibited
a lack of candor based on his submitted affidavit related to
these incidents. In 2014, Mr. Marin pleaded guilty to un-
lawfully entering land—a misdemeanor criminal offense.
In 2019, Mr. Marin “certified his timecard as if he worked
the entire day even though he failed to attend a mandatory
training that day,” and “it appear[ed] that [Mr.] Marin
falsely claimed to his supervisor that he did not attend the
training because he needed to take care of his ill mother.”
S.A. 65. The U.S. Attorney concluded that “[b]ecause many
of these issues impair [Mr.] Marin’s credibility, [the
agency] cannot accept any case in which [Mr.] Marin is
likely to be called as a witness by the prosecution or de-
fense.” S.A. 65.
On August 25, 2020, the agency sent Mr. Marin a letter
proposing to remove him on a single charge: “INABILITY
TO PERFORM FULL RANGE OF DUTIES.” S.A. 59 (em-
phasis omitted). The letter also cited to the July 10, 2020
Giglio letter. On October 23, 2020, the agency’s deciding
3 In Giglio, the Supreme Court required prosecutors
to disclose when a testifying officer may lack credibility.
See Giglio v. United States, 405 U.S. 150 (1972). The U.S.
Attorney’s Office (“USAO”) is responsible for ensuring com-
pliance with Giglio. Id. at 154.
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MARIN v. DHS 4
official for Mr. Marin’s case informed Mr. Marin via letter
that he would be removed from his position effective that
same day. S.A. 47–55. In this letter, the deciding official
explained that he considered the factors listed in Douglas
v. Veterans Administration, 5 M.S.P.R. 280, 306–07 (1981)
(“the Douglas factors”) to assess whether the penalty of re-
moval was appropriate and walked through each of the
twelve Douglas factors as they applied to Mr. Marin. S.A.
47–55.
Mr. Marin appealed the removal decision, and the ad-
ministrative judge (“AJ”) issued an initial decision affirm-
ing the agency’s decision to remove Mr. Marin from his
position. Marin v. Dep’t of Homeland Sec., No. SF-0752-21-
0089-I-1 (M.S.P.B. Aug. 18, 2021) (“Initial Decision”), S.A.
5–35. Mr. Marin petitioned the MSPB for review. The
MSPB denied the petition and adopted the AJ’s initial de-
cision as the MSPB’s final decision. See Final Decision, at
S.A. 37.
Mr. Marin timely petitions for review. We have juris-
diction under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
Our review of MSPB decisions is limited under
5 U.S.C. § 7703(c). We may set aside the MSPB’s decision
only if it is “(1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). “The petitioner bears the burden of es-
tablishing reversible error in the [MSPB’s] final decision.”
Sistek v. Dep’t of Veterans Affs., 955 F.3d 948, 953 (Fed. Cir.
2020).
An agency seeking to withstand a challenge to an ad-
verse action taken against an employee must (1) establish
by a preponderance of the evidence that the charged con-
duct occurred; (2) show a nexus between that conduct and
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MARIN v. DHS 5
the efficiency of the service; and (3) demonstrate that the
penalty imposed was reasonable. See Pope v. USPS, 114
F.3d 1144, 1147 (Fed. Cir. 1997).
Mr. Marin raises two main arguments challenging the
MSPB’s final decision. First, he argues that the agency
failed to establish a nexus between his inability to testify
and the efficiency of the service. Second, he argues that by
allowing him to continue to work for eighteen years despite
his disciplinary history, the agency had condoned that
practice, thus warranting mitigation of the removal pen-
alty. We address each argument in turn.
I
We first address Mr. Marin’s argument that the agency
did not meet its burden of establishing a nexus between his
sustained misconduct and the efficiency of the service. We
disagree.
Here, substantial evidence supports the MSPB’s nexus
finding. The MSPB determined that “[b]ecause the sus-
tained charge here encompassed [Mr. Marin’s] manifest
failure to meet the testimonial responsibilities of his job via
Giglio impairment—meaning he no longer met a clear con-
dition/qualification of his GS-1811-13 Criminal Investiga-
tor position,” “the agency met its burden of establishing by
preponderant evidence a nexus between the sustained mis-
conduct and the efficiency of the service.” Initial Decision,
at S.A. 18–19.
While Mr. Marin cites to Morrison v. National Science
Foundation, 423 F.3d 1366 (Fed. Cir. 2005), to support his
argument, see Appellant’s Informal Br. 13–15, that case is
distinguishable from the case at hand. In Morrison, the
employee’s “status as a productive employee who complied
with his supervisors’ instructions did not suddenly change”
upon his conviction. Morrison, 423 F.3d at 1369. Here,
however, once the July 10, 2020 Giglio letter issued, Mr.
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MARIN v. DHS 6
Marin was unable to meet his testimonial responsibilities,
so he could not meet his full range of job responsibilities.
We thus conclude that the MSPB’s nexus finding is
supported by substantial evidence.
II
Turning to Mr. Marin’s condonation argument, we con-
clude that the MSPB’s rejection of this argument was not
arbitrary, capricious, or otherwise erroneous.
The MSPB first evaluated the agency’s deciding official
letter, along with the attached Douglas-factors form, and
determined that “the agency considered pertinent penalty
factors, balanced them within acceptable parameters, and
thus [the agency’s] penalty determination deserves defer-
ence.” Initial Decision, at S.A. 22. The MSPB then deter-
mined that the agency did not condone Mr. Marin’s
impairment. Initial Decision, at S.A. 23. Rather, the
agency “worked diligently to accommodate [Mr. Marin] in
various ways, and did its best to utilize him in his assigned
position until the USAO finally determined he was Giglio-
impaired, which determination itself constituted a sea
change as to his capacity to fulfill his job duties.” Initial
Decision, at S.A. 23. The MSPB also stated that “the
agency was bound by the USAO’s determination (and in
truth, lacking authority could not have condoned anything
in terms of Giglio impairment).” Initial Decision, at S.A.
23.
On this record, the MSPB’s conclusion that “the agency
met its burden of proof as to the propriety of its chosen pen-
alty of removal,” Initial Decision, at S.A. 26, was not arbi-
trary, capricious, or otherwise erroneous.
CONCLUSION
We have considered Mr. Marin’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm the MSPB’s final decision.
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MARIN v. DHS 7
AFFIRMED
COSTS
No costs.
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