Case: 19-1578    Document: 38     Page: 1   Filed: 04/20/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                  JOSEPH H. MARTIN,
                       Petitioner

                             v.

     DEPARTMENT OF HOMELAND SECURITY,
                  Respondent
            ______________________

                        2019-1578
                  ______________________

    Petition for review of the Merit Systems Protection
 Board in No. DE-0752-17-0341-I-2.
                 ______________________

                  Decided: April 20, 2020
                  ______________________

     JEFFREY H. JACOBSON, Jacobson Law Firm, Tucson,
 AZ, for petitioner.

     BORISLAV KUSHNIR, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, for respondent. Also represented by JOSEPH H.
 HUNT, TARA K. HOGAN, ROBERT EDWARD KIRSCHMAN, JR.
                   ______________________

    Before NEWMAN, DYK, and WALLACH, Circuit Judges.
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2                                                MARTIN   v. DHS



 PER CURIAM.
      Joseph H. Martin appeals a decision from the Merit
 Systems Protection Board (“Board”) sustaining Mr. Mar-
 tin’s removal from the Department of Homeland Security,
 Customs and Border Protection (“DHS” or “agency”). Mr.
 Martin was removed for conduct unbecoming a Customs
 and Border Protection Officer (“CBPO” or “customs of-
 ficer”), lack of candor, and failure to follow a non-disclosure
 warning. We affirm.
                         BACKGROUND
     Mr. Martin is a former DHS customs officer and former
 chapter president of the National Treasury Employees Un-
 ion (“union”). In 2015, the DHS Office of Inspector General
 (“OIG”) received complaints from two agency employees,
 Ms. Lozoya and Ms. Demara, that, while discussing union
 matters off-duty, Mr. Martin made sexually inappropriate
 comments to each of them about these employees’ provid-
 ing sexual favors to him in exchange for union services.
 DHS OIG opened an investigation and interviewed Ms.
 Lozoya and Ms. Demara. OIG then recorded, with the con-
 sent of Ms. Lozoya and Ms. Demara, Mr. Martin’s tele-
 phone conversations with both employees, and made a
 video recording of Mr. Martin’s meeting with Ms. Demara
 in a hotel room. In the telephone recordings, Mr. Martin
 referred to the employees as having an “IOU” list with him;
 he discussed spanking them; and he made comments such
 as “Who’s your daddy?” and “It’s your daddy.” J.A. 5–6, 10,
 12. During the video recording, Mr. Martin referred to one
 of his supervisors, Jimmy Tong, with a racial slur.
     In the course of its investigation, on November 24,
 2015, DHS OIG interviewed Mr. Martin. Despite being
 provided with a warning not to disclose investigative infor-
 mation, Mr. Martin sent a packet of materials related to
 the investigation to Mr. Tong. On February 11, 2016, dur-
 ing a second interview with OIG, Mr. Martin repeatedly
 stated that he did not “recall” or “remember” whether he
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 MARTIN   v. DHS                                              3



 had made certain sexually suggestive or racially inappro-
 priate comments towards employees. J.A. 20–21.
     On June 12, 2017, Mr. Martin was removed from his
 position for charges of 1) conduct unbecoming a CBPO
 (three specifications); 2) lack of candor (two specifications);
 and 3) failure to follow a non-disclosure warning (three
 specifications). Mr. Martin appealed his removal to the
 Board. The Administrative Judge (“AJ”) issued a decision
 on November 28, 2018, sustaining three out of the eight
 specifications made by the agency and determined that re-
 moval was the appropriate penalty. For the first charge of
 “conduct unbecoming a CBPO,” the AJ found that although
 Mr. Martin made “crass and boorish” comments to Ms.
 Lozoya and Ms. Demara, he found that there was no impli-
 cation that they should “provide him with sexual favors in
 order for him to represent” them in disputes with manage-
 ment. J.A 9, 14. The AJ found however that Mr. Martin’s
 use of a racial slur regarding his supervisor had “no legiti-
 mate purpose” and sustained the charge on that ground.
 J.A. 15.
      The second charge, “lack of candor” was sustained be-
 cause the AJ found that Mr. Martin was attempting to “de-
 flect the investigation” in testifying that he did not recall
 whether he had made certain sexually suggestive or ra-
 cially inappropriate comments towards employees.
 J.A. 26. The AJ was persuaded by the fact that “these crass
 comments were [Mr. Martin’s] everyday banter” and he
 thus “should have remembered making these statements.”
 J.A. 26. The AJ was not convinced that medication contrib-
 uted to Mr. Martin’s lack of recollection because there was
 no “medical testimony” to this effect, and because his an-
 swers to other questions were “inconsistent with [Mr. Mar-
 tin’s] claims that the medication impacted his memory and
 concentration.” J.A. 27.
     The AJ sustained the third charge, “[f]ailure to follow
 [a] non-disclosure warning,” because Mr. Martin “by
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4                                                MARTIN   v. DHS



 sending . . . documents to [Mr.] Tong, . . . disclosed investi-
 gative information to an individual outside DHS OIG and
 not involved in the investigation,” violating the nondisclo-
 sure warning. J.A. 31.
     The AJ found that the agency did not commit an unfair
 labor practice by recording employees while they discussed
 union business, finding the recording to be “a proper exer-
 cise of management’s rights.” J.A. 36. The AJ noted that
 even if a union representative-bargaining unit member
 privilege exists in this context, it was waived by Ms. Lozoya
 and Ms. Demara when they agreed to the recordings. He
 also found that Mr. Martin’s Fourth Amendment rights
 were not violated because Ms. Lozoya and Ms. Demara con-
 sented to the recordings, and, moreover, that the exclusion-
 ary rule “does not apply to administrative proceedings.”
 J.A. 38 (quoting Fahrenbacher v. Dep’t of Veterans Affairs,
 89 M.S.P.R. 260, ¶ 14, n.5 (M.S.P.B. 2001)). Finding a
 nexus between the sustained charges and the efficiency of
 the service, the AJ affirmed the agency’s removal of Mr.
 Martin from federal service.
     Mr. Martin did not petition the Board for review. The
 AJ’s decision became the final decision of the Board. Mr.
 Martin seeks review directly by this court. We have juris-
 diction under 28 U.S.C. § 1295(a)(9).
                          DISCUSSION
     We must sustain the Board’s decision unless it is: “(1)
 arbitrary, capricious, an abuse of discretion, or otherwise
 not in accordance with law; (2) obtained without proce-
 dures required by law, rule, or regulation having been fol-
 lowed; or (3) unsupported by substantial evidence.” 5
 U.S.C. § 7703(c). Substantial evidence is “evidence that a
 reasonable mind may take as sufficient to establish a con-
 clusion.” Grover v. Office of Pers. Mgmt., 828 F.3d 1378,
 1383 (Fed. Cir. 2016).
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 MARTIN   v. DHS                                           5



                              I
     On appeal, Mr. Martin argues that the Board erred in
 considering the surveillance evidence gathered during the
 OIG investigation. This argument appears to only affect a
 single charge supporting Mr. Martin’s removal, that of con-
 duct unbecoming a CBPO, which the Board sustained for
 Mr. Martin’s use of a racial slur in OIG’s video recording.
 We agree with the government that the Board did not err
 in considering this material.
     First, the fact that Mr. Martin was off-duty is not dis-
 positive. We have previously noted that “adverse person-
 nel actions may be taken for off-duty conduct if there is a
 nexus between the conduct and the ‘efficiency of the ser-
 vice.’” King v. Dep’t of Veterans Affairs, 248 F. App’x 192,
 194 (Fed. Cir. 2007) (quoting Allred v. Dep’t of Health &
 Human Servs., 786 F.2d 1128, 1130 (Fed. Cir. 1986)). We
 have found “substantial evidence of a nexus” where “the in-
 cident happened at her employer’s facility and involved a
 supervisor.” Id. Similarly, here, as the Board noted, “the
 misconduct involved a fellow agency employee and in-
 volved an agency manager.” J.A. 39. The Board did not err
 in considering Mr. Martin’s off-duty conduct.
     Second, Mr. Martin urges us to apply the exclusionary
 rule to the evidence collected by OIG in this investigation,
 because it was “a substantial intrusion upon [Mr. Martin’s]
 right to privacy” under the Fourth Amendment. Reply 26.
 To the extent that the exclusionary rule applies to the
 Board’s proceedings, 1 ten of our sister Circuits have



    1  The Supreme Court “ha[s] repeatedly declined to ex-
 tend the exclusionary rule to proceedings other than crim-
 inal trials.” Pa. Bd. of Prob. & Parole v. Scott, 524 U.S.
 357, 363 (1998). The Board has held that “the Supreme
 Court’s decisions regarding the application of the exclu-
 sionary rule to proceedings other than criminal
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6                                               MARTIN   v. DHS



 concluded that “government interception of oral communi-
 cations [i]s permissible where one party to the conversation
 gave prior consent.” Holmes v. Burr, 486 F.2d 55, 56, 58
 (9th Cir. 1973). The Board correctly pointed out that Ms.
 Lozoya and Ms. Demara both “consented to the recordings”
 of Mr. Martin. J.A. 38. The Board’s refusal to apply the
 exclusionary rule was not error.
     Third, Mr. Martin argues that the Board abused its dis-
 cretion in not finding that the OIG committed an unfair la-
 bor practice under 5 U.S.C. § 7116(a)(1) when it interfered
 with confidential conversations between a union repre-
 sentative and a bargaining union member. This court has
 not recognized a union representative-bargaining unit
 member privilege. To the extent that it exists, however, we
 hold that it does not protect union representatives from
 charges of misconduct based on discussions with unit mem-
 ber employees.
     This privilege appears to originate from a decision by
 the Federal Labor Relations Authority (“FLRA”) in U.S.
 Department of the Treasury Customs Service Washington,
 D.C. (Respondent) & Nat’l Treasury Employees Union
 (Charging Party), 38 F.L.R.A. 1300 (Jan. 8, 1990). In that
 case, the privilege was recognized for the benefit of the em-
 ployee: “that the employee be free to make full and frank
 disclosure to his or her representative in order that the em-
 ployee have adequate advice and a proper defense.” Id. at
 1308 (emphasis added). In the few cases that have recog-
 nized this privilege, the privilege has been asserted for the
 benefit of protecting employee disclosures, not those of the
 union representative. See U.S. Dep’t of Justice v. Fed. La-
 bor Relations Auth., 39 F.3d 361, 368–69 (D.C. Cir. 1994);


 prosecutions do not provide a basis on which to extend the
 exclusionary rule to Board proceedings.” Delk v. Dep’t of
 Interior, No. DC0752920526-I-1, 1993 WL 190451, at *1
 (M.S.P.B. June 3, 1993).
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 MARTIN   v. DHS                                             7



 Bell v. Vill. of Streamwood, 806 F. Supp. 2d 1052, 1058
 (N.D. Ill. 2011); Long Beach Naval Shipyard Long Beach,
 California (Respondent) & Fed. Emps. Metal Trades Coun-
 cil AFL-CIO (Charging Party/union), 44 F.L.R.A. 1021,
 1038 (Apr. 29, 1992). The union representative-bargaining
 unit member privilege is analogous to the attorney-client
 privilege, whose purpose is also to “to encourage full and
 frank communication between attorneys and their clients.”
 Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). And
 just as the attorney-client privilege “is that of the client,
 not that of the attorney,” Am. Standard Inc. v. Pfizer Inc.,
 828 F.2d 734, 745 (Fed. Cir. 1987), if there is a union rep-
 resentative-bargaining unit member privilege, it belongs to
 the employee and not the union representative. The Board
 thus committed no error in holding that Mr. Martin could
 not assert the privilege.
                               II
     Mr. Martin additionally argues that the Board’s con-
 clusion that the agency proved lack of candor is not sup-
 ported by substantial evidence. We disagree.
     The Board recognized that “to constitute lack of candor,
 a misrepresentation or omission must have been made
 knowingly.” J.A. 16. “Although lack of candor necessarily
 involves an element of deception, ‘intent to deceive’ is not a
 separate element of that offense . . . .” Ludlum v. Dep’t of
 Justice, 278 F.3d 1280, 1284–85 (Fed. Cir. 2002). The
 charge “may involve a failure to disclose something that, in
 the circumstances, should have been disclosed in order to
 make the given statement accurate and complete.” Id. at
 1284.
     The Board’s conclusion that Mr. Martin lacked candor
 is supported by substantial evidence. The Board found
 that Mr. Martin was not credible in testifying that he does
 not recall whether he had made certain sexually suggestive
 or racially inappropriate comments towards employees.
 The Board considered the fact that “these crass comments
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8                                                 MARTIN   v. DHS



 were [Mr. Martin’s] everyday banter” and he thus “should
 have remembered making these statements.” J.A. 26. The
 Board explained that Mr. Martin “had a duty to candidly
 admit that he used such language, then offer an explana-
 tion” and found that “[h]e elected not to do that
 and . . . that he did so to deflect the investigation.” Id. (em-
 phasis added).
     Mr. Martin also faults the Board for not considering the
 fact that he was on medication (Bumetanide) that allegedly
 could cause memory loss in assessing the lack of candor
 charge. The Board, however, concluded that “[t]here does
 not appear to be a consensus that Bumetanide tablets im-
 pact memory and concentration.” 2 J.A. 27. The record only
 shows that “trouble concentrating, confusion, [and]
 memory loss” may be possible side effects of this medica-
 tion for “people with liver disease,” which Mr. Martin ad-
 mits he does not have. J.A. 27 (quoting print out from
 Healthline.com). Moreover, the Board considered the fact
 that “when the entire transcript of the interview is re-
 viewed, there is no other portion where the appellant re-
 sponds in this manner, which I find is inconsistent with his
 claims that the medication impacted his memory and con-
 centration.” J.A. 27. The Board thus properly considered
 Mr. Martin’s arguments, and its findings are supported by
 substantial evidence.
      Finally, Mr. Martin argues that the agency did not clar-
 ify which portion of the interview it was referring to in the
 specification of the charge and that the Board substituted
 its own basis for removal, rather than relying on what was
 identified by the agency. He also argues that the Board
 “abused [its] discretion by exceeding the scope of the


     2 Contrary to Mr. Martin’s argument, the Board was
 not improperly shifting the burden of proof to Mr. Martin.
 Instead, the Board simply found that Mr. Martin did not
 make a sufficient showing that his memory was impaired.
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 MARTIN   v. DHS                                            9



 proposed removal letter” in comparing Mr. Martin’s an-
 swers during the interview to those of his sworn statement.
 Appellant’s Br. 17. Neither argument is persuasive.
     The charge specified the topic of the questions and de-
 scribed Mr. Martin’s response to them:
    [D]uring an interview with Special Agents of the,
    [sic] DHS, OIG, you stated either “I don’t recall” or
    “I don’t remember”, or words to that effect, to ap-
    proximately ten (10) questions in a row asking
    whether you had committed certain specific acts in
    which you insinuated an employee must provide
    you sexual favors for your performance of union
    work on their behalf.
 J.A. 20–21. Mr. Martin even admitted that he understood
 which portion of the interview the charge referred to. The
 Board thus did not substitute its own reasons for removal
 for those provided by the agency.
     The Board also did not rely on Mr. Martin’s sworn
 statement to uphold the charge. The Board simply consid-
 ered the number of different excuses Mr. Martin provided
 for his evasive answers as supporting its findings that Mr.
 Martin was not credible. Substantial evidence supports
 the Board’s finding that Mr. Martin lacked candor in an-
 swering certain questions during his second OIG interview.
    Mr. Martin’s other arguments have been considered,
 and we conclude that they likewise lack merit.
                        AFFIRMED
