Rodriguez v. Department of Homeland Security , 314 F. App'x 318 ( 2009 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3209
GILBERT L. RODRIGUEZ,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
Jose Salvador Tellez, of Laredo, Texas, argued for petitioner.
Allison Kidd-Miller, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent. With
her on the brief were Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy
Director. Of counsel on the brief was J. Douglas Whitaker, Administrative Law Attorney,
Immigration and Customs Enforcement, United States Department of Homeland
Security, of Omaha, Nebraska.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3209
GILBERT L. RODRIGUEZ,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
Petition for review of the Merit Systems Protection Board in DA0752070091-I-1.
__________________________
DECIDED: March 3, 2009
__________________________
Before LOURIE, DYK, and PROST, Circuit Judges.
Opinion for the court filed by Circuit Judge PROST. Concurring opinion filed by Circuit
Judge DYK.
PROST, Circuit Judge.
Gilbert L. Rodriguez petitions for review of a final decision by the Merit Systems
Protection Board (“Board”) that sustained his removal by the Department of Homeland
Security (“Agency”). Rodriguez v. Dep’t of Homeland Sec., No. DA0752070091-I-1
(M.S.P.B. Jan. 31, 2008) (“Board Decision”). Because we discern no error in the
Board’s decision, we affirm.
BACKGROUND
In March 2001, the San Antonio District Office of the Department of Justice’s
Immigration and Naturalization Service (“INS”) conducted an operation that resulted in
the apprehension of about thirty-five illegal aliens. While taking the aliens into custody,
three deportation officers severely injured Serafin Carrera, one of the apprehended
aliens. Rodriguez, who was then a Detention Enforcement Officer (“DEO”) responsible
for transporting apprehended aliens, witnessed some of the events surrounding
Carrera’s injury. While Rodriguez was transporting other aliens to the San Antonio
District Office (for processing prior to returning those individuals to Mexico), Rodriguez
learned that Carrera had sustained a broken neck. When he arrived at the District
Office, Rodriguez unplugged the camera from the Automated Biometric Identification
System (“IDENT”) and told his supervisor, Oscar Chapa, that the machine was not
functioning. The IDENT machine allows a previously deported alien to be quickly and
accurately identified once that individual’s photograph, fingerprints, and personal
biographical data are entered. As a result of Rodriguez’s inaccurate statement to his
supervisor, the aliens were not processed through IDENT.
The three deportation officers responsible for Carrera’s injuries were later tried—
and convicted—on criminal civil rights charges. Rodriguez testified during their trial,
and, in his testimony, Rodriguez admitted to unplugging the IDENT machine on the day
of Carrera’s arrest and telling his supervisor that the machine was not functioning. After
learning of his misconduct, the Agency removed Rodriguez, effective October 28, 2006,
based on three charges: (1) making misstatements, (2) conduct unbecoming an officer,
and (3) noncompliance with procedures, policies, and instructions. At the time of his
2008-3209 2
removal, Rodriguez was employed as a Deportation Officer for the Agency’s Office of
Immigration and Customs Enforcement (“ICE”), which replaced the INS when the
Agency was created in March 2003.
Rodriguez, represented by an attorney, filed an appeal with the Board
challenging his removal. Rodriguez also alleged that his removal was the result of
reprisal for a whistleblowing activity. In an initial decision, the administrative judge
sustained each of the three charges and the Agency’s chosen penalty of removal, but
refused to consider Rodriguez’s whistleblower claim. Rodriguez v. Dep’t of Homeland
Sec., No. DA0752070091-I-1 (M.S.P.B. May 18, 2007) (“Initial Decision”). After
Rodriguez petitioned for review, the Board found that the administrative judge erred by
failing to accept the whistleblower claim as an affirmative defense, but that this error did
not prejudice Rodriguez’s substantive rights because Rodriguez failed to establish a
prima facie case of whistleblower reprisal. Board Decision at 8-12. The Board
sustained Rodriguez’s removal, id. at 1, and Rodriguez appealed to this court.
DISCUSSION
While this court has jurisdiction to review a final decision by the Board, our scope
of review is limited. 5 U.S.C. § 7703(b)(1). We must affirm the decision by the Board
unless we find it to be: “(1) arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by substantial evidence.” Id.§ 7703(c); Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1581 (Fed. Cir. 1994). On
appeal, Rodriguez presents three challenges to the Board’s decision.
2008-3209 3
A
Rodriguez argues that the Agency failed to prove the third charge—
noncompliance with procedures, policies, and instructions—because IDENTing was
allegedly not part of the San Antonio District Office’s normal procedures. The
administrative judge, however, made a factual finding that, in March 2001, a procedure
was in effect that required all aliens to be IDENTed before deportation. Initial Decision
at 13. The administrative judge based this determination on substantial evidence,
including the testimony of Marc Moore and the criminal trial testimony provided by
Rodriguez. Id. at 9-13. On appeal, Rodriguez argues that Moore was biased, that his
testimony is not credible, and that the administrative judge improperly discounted Oscar
Chapa’s testimony. The Board rejected these arguments, characterizing them as “mere
disagreement with the AJ’s explained credibility determinations.” Board Decision at 8.
We agree with the Board and see no reason to overturn the administrative judge’s
credibility determinations. See King v. Dep’t of Health & Human Servs., 133 F.3d 1450,
1453 (Fed. Cir. 1998).
Also, Rodriguez alleges that the Agency did not present substantial evidence to
support the charges because “taken in the totality of the circumstances, [Rodriguez’s
actions] had no affect on [the Agency’s] operation” that day. Petr.’s Br. 11. We are not
persuaded. The Board found that, because of Rodriguez’s misstatement, the Agency
did not enter the deported aliens’ fingerprints, photographs, and personal biographical
information into IDENT. Board Decision at 5. Accordingly, the Agency’s ability to
identify those individuals in the future was severely limited, and, as the Agency stated in
the notice proposing removal, Rodriguez’s misstatement evidenced a failure to use
2008-3209 4
good judgment, which “damaged the Agency’s confidence in [his] ability to perform [his]
duties.”
Rodriguez admitted to making the misstatement (first charge), and the
administrative judge found that the Agency proved that Rodriguez’s actions constituted
conduct unbecoming a law enforcement officer (second charge) and a failure to comply
with procedures, policies, and instructions (third charge). Based on the record, we
conclude that these findings are supported by substantial evidence.
B
Second, Rodriguez alleges that removal was an unreasonable penalty under the
Douglas factors. Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305-06 (1981).
Rodriguez faults the deciding official for merely reviewing a file prepared by another
department and alleges that the deciding official failed to consider “other factors
involved in this case that could have served as mitigating circumstances.” Rodriguez
also argues that the deciding official should have given more or less weight to particular
Douglas factors. Rodriguez, however, fails to identify any information that should have
been—but was not—considered by the deciding official.
As noted by the administrative judge, the deciding official performed a detailed
and reasonable Douglas-factor analysis. Initial Decision at 14-16. The administrative
judge further found that Rodriguez’s misconduct “was extremely serious and
inconsistent with his duties and responsibilities as a law enforcement officer.” Id. at 16;
see also Watson v. Dep’t of Justice, 64 F.3d 1524, 1530 (Fed. Cir. 1995) (“Law
enforcement officers are held to a higher standard of conduct than are other federal
employees . . . .”). In light of this record, we cannot conclude that “the severity of the
2008-3209 5
agency’s action appears totally unwarranted in light of all factors.” LaChance v. Devall,
178 F.3d 1246, 1251 (Fed. Cir. 1999) (quotation omitted). Accordingly, we will not
overturn the Agency’s penalty determination.
C
Finally, Rodriguez alleges that the Board erred in concluding that his March 26,
2001 memorandum was not a “protected disclosure” under the Whistleblower Protection
Act (“WPA”). The WPA prohibits an agency from taking adverse personnel action
because of an employee’s “disclosure of information” that the employee “reasonably
believes evidences . . . a violation of any law, rule, or regulation.” 5 U.S.C.
§ 2302(b)(8)(A)(i). The Board found that Rodriguez’s memorandum “does not meet the
definition of protected disclosure under the WPA because it does contain any
information that [Rodriguez] could have reasonably believed evidenced a violation of
law or any other type of misconduct identified in 5 U.S.C. § 2302(b)(8).” Board Decision
at 10-11. The Board further found that the memorandum contains a “sanitized version
of the events . . . and actually creates the impression that government personnel
assiduously attempted to safeguard Mr. Carrera’s health.” Id. at 11. Accordingly, the
Board determined that Rodriguez failed to establish a prima facie case of whistleblower
reprisal. Id. at 12. We agree.
Rodriguez also alleges that his testimony during the agents’ criminal trial in 2003
constituted a disclosure protected by 5 U.S.C. § 2302(b)(9). As the Agency notes,
however, the record before us shows that Rodriguez did not make this assertion before
the Board and instead relied solely on the March 26, 2001 memorandum for the alleged
protected disclosure. Rodriguez—who was represented by counsel both before the
2008-3209 6
Board and on appeal—provides us with no reason why we should entertain this
allegation in the first instance on appeal. Accordingly, we conclude that Rodriguez
waived this argument.
COSTS
Each party shall bear its own costs.
2008-3209 7
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3209
GILBERT L. RODRIGUEZ,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
Petition for review of the Merit Systems Protection Board in DA0752070091-I-1.
DYK, Circuit Judge, concurring.
I join the majority opinion, but write separately to note the government’s
remarkable suggestion that Rodriguez’s testimony during his fellow agents’ criminal trial
in 2003 was not protected activity—i.e., that Rodriguez could have been removed for
testifying. This is so, the government contends, because the testimony allegedly was
given as part of Rodriguez’s normal duties. Respondent’s Br. at 30, 32-33 (citing
Huffman v. Office of Pers. Mgmt., 263 F.3d 1341, 1352-54 (Fed. Cir. 2001)).
That is plainly incorrect as a factual matter. Rodriguez was employed first as a
Detention Enforcement Officer, where his primary responsibility appears to have been
transporting detained aliens in a passenger bus, and later as a Deportation Officer.
While his job responsibilities may have entailed testifying in court proceedings involving
immigration matters, nothing in the record supports the government’s bald assertion that
Rodriguez “testified against his coworkers in the course of his normal job duties,
through normal channels.” Id. at 33. Rodriguez’s normal job duties did not consist of
“the task of investigating and reporting wrongdoing by government employees,”
Huffman, 263 F.3d at 1352, much less testifying against them in criminal trials.
In any event, in my view disclosures in criminal trial testimony against an
employee’s coworkers could virtually never be said to be part of an employee’s normal
duties. They are protected activity within the meaning of the WPA. It cannot seriously
be doubted that government employees who give such testimony against their
coworkers put themselves at substantial risk of workplace retaliation. It is critically
important that those employees be protected, and the WPA was designed to afford such
protection.
Rodriguez’s allegations of reprisal following his testimony are troubling. In May
2003, he gave key testimony leading to the conviction of three fellow INS agents who
violated the civil rights of detainee Serafin Carrera. The Fifth Circuit affirmed the
agents’ convictions on January 17, 2006. United States v. Gonzales, 436 F.3d 560(2006). Not until June 30, 2006, after those convictions had been affirmed by the Fifth
Circuit, did the Agency propose Rodriguez’s removal based on the statements made in
his trial testimony that he had unplugged the IDENT machine on the day of Carrera’s
arrest. The timing of the personnel action against Rodriguez is, to say the least,
suspicious. Nonetheless, I agree that Rodriguez did not raise this issue below, and so it
is not properly before us.
2008-3209 2