CPOA Magazine Article – Double Jeopardy in Employment Discipline

By Martin J. Mayer

Published by CPOA in “California Peace Officer” on April 15, 2014

In December, 2013, the United States Court of Appeals for the Federal Circuit ruled, in Nguyen v. Department of Homeland Security, 737 F.3d 711, that it is not “double punishment” to impose discipline for misconduct and then impose additional discipline when the misconduct prevents the employee from testifying on behalf of the prosecution.

[The Federal Circuit, based in Washington, D.C., is unique among the circuit courts of appeals as it is the only court that has its jurisdiction based wholly upon subject matter, rather than geographic location. The court hears certain appeals from all of the United States District Courts, appeals from certain administrative agencies, and appeals arising under certain statutes.]

Trong Nguyen is an employee at the Department of Homeland Security (“Agency”).  In Mr. Nguyen’s former position as a Deportation Officer he worked closely with the United States Attorney’s Office (USAO) for the Northern District of California. Mr. Nguyen was often required to testify as a witness during grand jury proceedings and criminal prosecutions.

“In 2008, 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 (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.’ Upon finding the charge was sustained, the Agency mitigated the proposed penalty and demoted Mr. Nguyen to a Detention and Removal Assistant. 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.”


The court stated that “the parties’ dispute in this case centers on the effect of the USAO’s determination that Mr. Nguyen was Giglio impaired [Giglio v. United States, 405 U.S. 150 (1972)] and thus could not testify in criminal prosecutions. 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 defendants have a due process right to be informed of evidence affecting a government witness’s credibility.  It required that prosecutors establish procedures to ensure that such exculpatory evidence is identified and disclosed to the defendant.  Suppression of such impeachment evidence requires a new trial if it could ‘in any reasonable likelihood’ have affected the jury’s judgment.  The Ninth Circuit has applied Giglio to hold that prosecutors must examine personnel files of a law enforcement witness they intend to call at trial for evidence affecting the witness’s credibility.”

“The Agency lacked authority to force the USAO to allow Mr. Nguyen to testify or to otherwise challenge the USAO’s Giglio determination. The Board found this prohibition made Mr. Nguyen unable to perform the full range of his duties, and thus sustained the Agency’s demotion. This finding is supported by substantial evidence. 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.’”

“Mr. Nguyen argues that, even if the Agency’s decision is otherwise supported, it impermissibly subjected him to double punishment for the same misconduct. 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.’”

“The Board found the 2011 demotion was based on the USAO’s Giglio determination, whereas the 2008 suspension was based on Mr. Nguyen’s earlier misconduct . . . .  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 prosecution. For this reason, the Agency alleged Mr. Nguyen would be unable to ‘perform the full range of duties’ of a Deportation Officer.  It did not mention Mr. Nguyen’s earlier misconduct.”

“In sustaining the charges, the Agency did not impliedly rely on the 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 employee twice for the same misconduct.’ 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.”


The logic behind the Nguyen decision cannot be applied in California.  In 2013, the Legislature passed SB 313 which amended the Public Safety Officers’ Bill of Rights Act (POBRA) and added Gov. Code section 3305.5.

Section 3305.5 states, in part, that “punitive action, or denial of promotion on grounds other than merit, shall not be under-taken by any public agency against any public safety officer solely because that officer’s name has been placed on a Brady list, or that the officer’s name may otherwise be subject to disclosure pursuant to Brady v. Maryland, (1963) 373 U.S. 83.”

Brady, like Giglio, requires the prosecutor to provide any exculpatory evidence to the defense, including evidence which can be used to challenge the credibility of a material prosecution witness (such as a finding of dishonesty by the employing agency).  As such, under the facts of the Ngyuen case, a separate disciplinary action could not be initiated under California law.

The rationale of the court in Nguyen, however, is just as applicable in all cases which involve the decision by a prosecutor to not be able to use the testimony of a witness, if he or she has been found to have committed misconduct which could challenge their credibility.  The situation in California is, potentially, fraught with problems if a prosecutor refuses to prosecute a case brought by such an officer and/or refuses to use that officer as a witness.  As such, the question confronting law enforcement management in California is – what purpose does that officer now serve?

Martin J. Mayer, is a name partner with the public sector law firm of Jones & Mayer.  In addition to serving as special counsel to police chiefs and sheriffs throughout the state, Mr. Mayer has served as General Counsel for CPOA for over 30 years.