The case is Marin v. Department of Homeland Security (CAFC No. 2024-1767 (nonprecedential) 2/7/2025). Marin began working with Immigration and Customs Enforcement in 1991. In 2002, he became a Criminal Investigator, a law enforcement position that required working with the U.S. Attorney’s Office and, as needed, serving as a witness on the Government’s behalf: “This position also requires the Criminal Investigator to have the ‘ability to testify as a witness in a professional, credible, articulate, and consistent manner.’”
(Opinion p. 2)
When the Chief of the Criminal Division in the U.S. Attorney’s Office (USAO) complained in writing about Mr. Marin to the DHS Special Agent in Charge about Marin’s misconduct that makes it “difficult” to call on him as a witness “in any of our cases,” it was bad news for Mr. Marin. The complaint detailed that “[Marin’s] conduct has led to him being prosecuted and disciplined, including for matters that directly relate to his credibility.” (P. 3)
Apparently, Marin’s misdeeds included things such as misuse of government-owned cars, waving his government-issued firearm around for “unofficial purposes,” and lack of candor in his affidavits responding to these various misdeeds. (P. 3)
The Chief went on to point out that Marin had pled guilty to a criminal misdemeanor, certified a false time card, and lied to his supervisor about taking care of an ill relative. These various issues go to the heart of Marin’s credibility as a witness for the Government and, therefore, the U.S. Attorney’s Office “cannot accept any case in which Marin is likely to be called as a witness.” (p. 3) Referred to as a Giglio letter from the USAO, the damning refusal to work with Marin in criminal cases was the last straw for his law enforcement career.
This Giglio letter addressed to DHS led the agency to propose to remove Marin for the single charge of Inability to Perform Full Range of Duties. The proposed removal was sustained by the agency’s deciding official who detailed in his final decision letter his consideration of the so-called Douglas factors in assessing whether removal was appropriate in this case. He concluded it was.
Marin filed an administrative appeal with the MSPB, and when the Board upheld the agency’s removal decision, he took his case to the appeals court. (p. 4)
Marin argued that the agency had failed to establish a nexus between his not being able to serve as a court witness and the efficiency of the service. The court flatly disagreed. His job required that he support the U.S. Attorney and testify in court when needed, and he could no longer do this. The nexus burden was met by the agency. (p. 5)
Marin’s other argument was that by standing by and allowing him to work for 18 plus years despite his record of disciplinary actions, the agency “had condoned” the situation and could not now remove him. The MSPB had rejected this argument based on the USAO letter. While the agency had “worked diligently to accommodate [Marin]…and did its best to utilize him in his assigned position,” the letter from the USAO was a “sea change” in Marin’s capacity to fulfill his duties. He no longer could, and the agency acted. (P. 6) The court sustained the Board’s conclusion and affirmed Marin’s removal.
