In this recent case (Adeleke v. Department of Homeland Security (CAFC No. 2013-3161 (nonprecedential) 1/8/14) an Immigration Officer admittedly lied to his agency (U.S. Customs and Immigration Service) during a routine background investigation, was fired, took his case to an arbitrator, and won mitigation of the penalty to a reprimand. Flush with success, he tried for attorney fees, but the previously magnanimous arbitrator drew the line and said no. The appeals court has now backed that decision.
Peter Adeleke serves as an Immigration Officer at USCIS administering benefits. When asked in a background investigation questionnaire, he said he did not live with a cohabitant nor did he have “close and/or continuing contact with foreign nationals within the last 7 years” involving “affection, influence, and/or obligation.” (Opinion p. 2)
The agency’s investigation concluded that Adeleke did in fact cohabit with “such a foreign national.” (p. 2) The agency table of penalties calls for reprimand to removal for the offense of “lack of candor.” USCIS decided to remove Adeleke for his lack of candor.
The appeal ended up in front of arbitrator James M. Klein. During the hearing Adeleke admitted he had lied to USCIS about the fact he had cohabited with a foreign national. The arbitrator found that the agency had “a sufficient basis and a legitimate interest in disciplining Adeleke for lack of candor…” but he knocked the penalty all the way down to a reprimand. His logic was that Adeleke’s lack of candor did “not appear to have any direct bearing on his job duties which involve the management of benefits.” (pp. 2-3)
The arbitrator ordered the agency to reinstate Adeleke retroactively to his position, with restoration of benefits, full back pay, the whole nine yards. Ouch!
Adeleke asked for attorney fees, arguing the agency had acted in bad faith in trying to remove him and “knew or should have known that it would not prevail on the merits when it brought the action.” (p. 3) The arbitrator apparently found this a stretch and denied the attorney fees. In reaching this decision the arbitrator noted the agency’s “legitimate interest” in taking discipline for lack of candor, the agency’s “thorough investigation,” pointed to the “significant resources” and tax dollars spent by the agency on the case, and the fact that “ultimately, the Grievant lied.” (p. 3) He found the agency had not acted in bad faith nor should the agency have known it would not prevail in the firing decision. The arbitrator declined to order up attorney fees under the circumstances.
Adeleke exercised his right to appeal. He asked the appeals court to overturn this miscarriage of justice and grant him attorney fees. Noting that Adeleke did not push the “bad faith” argument but rather only asserted the agency “should have known” it would not prevail, the court brushes aside his arguments. The court finds that mitigation of the penalty does not presume that attorney fees are to be awarded:
“Under USCIS guidelines, removal was within the range of penalties for giving false statements. Substantial evidence thus supports the arbitrator’s finding that USCIS did not know and should not have known that it would not prevail in the removal action. Given that finding (and the admitted lack of bad faith), the denial of fees is in accordance with law.” (p. 6)