## Facts

- Jeffrey Otherson was a Border Patrol agent employed by the Immigration and Naturalization Service (INS).
- Federal prosecutors charged Otherson and other agents with misconduct described as systematically mistreating aliens during July 3–4, 1979, including on-duty physical assaults as part of a prearranged scheme.
- A first criminal trial ended in a mistrial after the jury deadlocked 11–1 for conviction.
- The government dropped felony charges and proceeded to a bench trial on reduced misdemeanor charges based on a stipulated record largely incorporating testimony of government witnesses from the first trial.
- The court convicted Otherson, imposed a fine, probation, and community service; the conviction was affirmed on appeal.
- INS removed Otherson from federal service based on the same misconduct underlying the criminal case.
- Otherson appealed the removal to the Merit Systems Protection Board (MSPB), which treated the criminal conviction as conclusively establishing the underlying misconduct and upheld removal as promoting the efficiency of the service.

## Issues

1. Whether MSPB proceedings may apply issue preclusion to factual issues established by a prior criminal conviction when the traditional requirements for collateral estoppel are met.
2. Whether the MSPB abused its discretion in sustaining removal as the penalty for Otherson’s misconduct.

## Decision

- The D.C. Circuit affirmed the MSPB’s decision.
- The court held that, when ordinary collateral-estoppel requirements are satisfied, facts established by a criminal conviction may be given preclusive effect in MSPB removal proceedings.
- The court held the MSPB did not abuse its discretion in sustaining removal, given the seriousness of the on-duty misconduct and its connection to the efficiency of the service.

## Legal Principles

- Issue preclusion may apply in administrative employee-discipline proceedings based on a prior criminal conviction if the issue was identical, actually litigated, necessarily decided, and the party had a full and fair opportunity and incentive to litigate.
- A criminal conviction following an adversarial proceeding can satisfy “actually litigated” and “full and fair opportunity” requirements even when the conviction rests on a stipulated record entered with counsel as part of a negotiated charging disposition.
- Reviewing courts give substantial deference to the MSPB’s choice of penalty and will uphold removal if it falls within tolerable bounds and is reasonably tied to the statutory “efficiency of the service” standard, especially for deliberate misuse of law-enforcement authority.

## Conclusion

The court upheld Otherson’s removal, ruling that the MSPB could treat his criminal conviction as conclusively establishing the misconduct and that discharge was within the MSPB’s discretion given the gravity of the on-duty abuse and its impact on public trust and agency efficiency.


Otherson v. Dep’t of Just., INS, 711 F.2d 267 (D.C. Cir. 1983)