Otherson v. Department Of Justice, INS

711 F.2d 267 (1983)

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Nature of the Case

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Facts

On September 24, 1979, the government (P) filed criminal charges against D and three other INS agents for systematically mistreating aliens on July 3 and 4, 1979. P alleged a conspiracy to defraud the United States in violation of 18 U.S.C. § 371 (1976), and deprivation under color of law of the rights of inhabitants of California in violation of 18 U.S.C. § 242 (1976). The jury was deadlocked eleven to one in favor of conviction, and the judge granted a mistrial. P then agreed to drop the felony charge from the first trial alleging conspiracy to defraud the United States. D and another agent were then indicted on misdemeanor federal offenses. P alleged that they had deprived aliens of federal rights in violation of 18 U.S.C. § 242 (1976) and had conspired to effect this deprivation in violation of 18 U.S.C. § 371 (1976). P was involved in several instances of on-duty physical assaults against aliens according to a prearranged scheme. The parties agreed to proceed without a jury on the basis of a stipulated record. The parties stipulated that if six of the government's witnesses were recalled, they would testify on both direct and cross-examination as they had at the first trial. The parties also stipulated that three of the government's exhibits be admitted into evidence and considered by the court. The stipulation did not introduce any of the testimony or evidence Ds introduced at the first trial. This was at least one of the concessions that induced the government to reduce the charges to misdemeanor offenses. P was found guilty on both counts. D was fined $ 1,000 for one count, and suspended sentence on the other, placing D on three years' probation and ordering him to perform 750 hours of community service. D appealed arguing (1) that aliens are not 'inhabitants' of a state within the meaning of 18 U.S.C. § 242 (1976); and (2) that the statute does not apply to actions under color of federal law, but only those under color of state law. The appeals court rejected both arguments. On June 2, 1980, the INS removed D from his job citing D's mistreatment of aliens as the reason for removal and specified the same acts of misconduct contained in the superseding information on which D had been convicted. D appealed to MSPB. The INS bore the burden of proving beyond a preponderance of the evidence, that D's removal would 'promote the efficiency of the [federal] service.' The INS relied on D's criminal conviction to prove that he had committed the specified misconduct. The presiding official rejected D's contention that prior judicial determinations could never preclusively establish issues in MSPB hearings. The presiding official found that the factual issues of misconduct in the adverse action hearing were identical to those in the criminal proceeding and that they had been actually litigated and necessarily determined at the criminal trial. Accordingly, she found preclusion appropriate for those issues. P sought review of the presiding official's decision by the full MSPB. The Board denied the petition, stating that the MSPB was entitled to rely on the doctrine of collateral estoppel. D appealed. D argues in part that an employee's statutory right to a hearing in appeals to the MSPB makes issue preclusion inappropriate and that the doctrine of issue preclusion, even if applicable in MSPB hearings.