UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BASSEM YOUSSEF, Plaintiff, Civil Action No. 11-1362 (CKK) v. LORETTA E. LYNCH, United States Attorney General, Defendant.

MEMORANDUM OPINION1 (January 14, 2016)

Presently before the Court is Plaintiff’s [100] Motion for Issuance of Trial Subpoenas.

Through Plaintiff’s motion, Plaintiff seeks the issuance of trial subpoenas directed to Defendant

and Mr. Armando Fernandez for the following documents:

1. Any and all documents contained in Mr. Armando Fernandez’s personnel file; and 2. Any and all documents relating to disciplinary actions or investigations related to Mr. Fernandez, including, but not limited to any Department of Justice (“DOJ”) Office of Inspector General (“OIG”) files and their findings or final disposition, FBI OPR files and their findings or final disposition, FBI Office of Equal Opportunity (“EEO”) files and their findings and final disposition, and any other documents from all investigatory or disciplinary offices that may have been directly or indirectly related to Mr. Fernandez’s deficiencies and/or misconduct.

Pl.’s Mot. at 1. Plaintiff limits his request in time from the date discovery closed in this

matter (December 17, 2012) until such time as the FBI closes all investigations or proceedings

concerning Mr. Fernandez. Id. at 1-2. Upon consideration of the pleadings,2 the relevant legal

1 This Memorandum Opinion does not discuss any confidential information that was included in the materials filed ex parte and in camera on January 7, 2016, which the Court finds to be unrelated to the present suit and to which Plaintiff shall not be entitled access. Accordingly, this Memorandum Opinion shall not be filed under seal. 2 While the Court renders its decision on the record as a whole, its consideration has focused on the following documents: Plaintiff’s [100] Motion for Issuance of Trial Subpoenas, ECF No. [100]; Defendant’s Opposition to Plaintiff’s Motion, ECF No. [104]; the materials relating to the disciplinary action and investigation of Mr. Fernandez that were filed ex parte and in camera by authorities, and the record as a whole, the Court shall GRANT-IN-PART, DENY-IN-PART

Plaintiff’s [100] Motion for Issuance of Trial Subpoenas.

For the reasons described below, the Court finds that Plaintiff is not entitled to all

documents contained in Mr. Fernandez’s personnel file. The Court also finds, however, that

Plaintiff is entitled to the portions of the two letters, filed ex parte and in camera by Defendants,

that concern two OPR findings relevant to Mr. Fernandez’s credibility, but only to the extent that

such portions are necessary to provide Plaintiff with a good faith basis to conduct permissible

impeachment of Mr. Fernandez at a de bene esse deposition and/or trial.

I. BACKGROUND

Plaintiff’s requests concern the employment of Mr. Armando Fernandez, an FBI

employee who served as the Chairman of the Career Board that did not select Mr. Youssef for

the Assistant Section Chief (“ASC”) position. Pl.’s Mot. at 3. Mr. Fernandez was listed by

Defendant in its Rule 26 initial disclosures and was deposed by Plaintiff during discovery. Id.

Documents contained in Mr. Fernandez’s personnel file or relating to potential candor issues for

agency witnesses were not requested by Plaintiff during discovery. Def.’s Opp’n at 1-2.

In the parties’ joint pretrial statement, Defendant indicated that it seeks to introduce

witness testimony by Mr. Fernandez at trial, which is scheduled to begin on May 16, 2016. See

ECF No. [77], at 20; Order (Nov. 16, 2015), ECF No. [107]. Because Mr. Fernandez is

unavailable for trial under Federal Rule of Civil Procedure 32(a)(4)(B), the Court has permitted

the parties to schedule a de bene esse deposition of Mr. Fernandez, which shall be used at trial in

place of the witness’s live testimony. See Minute Order (Jan. 4, 2016). The parties will be filing

Defendant on January 7, 2016; and Defendant’s Ex Parte and In Camera Memorandum against Release of Documents Pertaining to Armando Fernandez, also filed on January 7, 2016. 2 a joint notice by January 21, 2016, indicating the logistical details regarding the deposition,

including the date and location of the deposition. See Order (Nov. 16, 2015), ECF No. [107].

After discovery closed on December 17, 2012, and after summary judgment motions

were decided on January 28, 2014, Plaintiff learned that Mr. Fernandez was demoted from his

high-level Special Agent-in-Charge position with the FBI to Special Agent, a low-level position

with no supervisory responsibility, and ultimately that Mr. Fernandez is no longer employed by

the FBI, having been terminated. Pl.’s Mot. at 3. Plaintiff believes that this matter was

investigated internally by the FBI as well as by the Department of Justice Office of the Inspector

General. Id. at 4. Plaintiff maintains that these types of adverse personnel actions are highly

unusual and indicate a strong likelihood that the witness may have engaged in serious

misconduct and that there may have been findings related to his lack of candor. Id.

On October 19, 2015, Plaintiff filed the present motion, seeking (1) documents contained

in Mr. Fernandez’s personnel file and (2) documents relating to disciplinary actions or

investigations related to Mr. Fernandez. Id. at 1. Plaintiff bases his request on the grounds that

the requested documents “implicate the truth and veracity of Mr. Fernandez,” and that the

documents may also contain information related to Mr. Fernandez’s bias, if any. Id. at 2.

On November 13, 2015, at the pretrial conference held before the Court, Defendant

indicated that the documents at issue in Plaintiff’s motion contain confidential information that is

not reasonably related to the conduct at issue in this litigation. The Court ordered Defendant to

file, ex parte and in camera, the materials at issue in Plaintiff’s motion that Defendant believed

to be confidential, as well as a memorandum of law in support of Defendant’s arguments against

the release of the documents to Plaintiff. See Order (Nov. 16, 2015), ECF No. [107]. On

January 7, 2016, Defendant submitted, ex parte and in camera, certain materials relating to an

3 investigation and two disciplinary actions involving Mr. Fernandez, as well as a memorandum of

law against the release of the documents. See Def.’s Notice of Compliance with Court Order,

ECF No. [116].

II. DISCUSSION

Plaintiff’s motion seeks two categories of documents: (1) documents contained in Mr.

Fernandez’s personnel file and (2) documents relating to disciplinary actions or investigations

related to Mr. Fernandez. Pl.’s Mot. at 2.

Plaintiff believes that he is entitled to both categories of documents because they

“implicate the truth and veracity of Mr. Fernandez” and because they may contain information

related to the witness’s bias, if any. Id. Plaintiff also argues that he could not have discovered

the evidence at an earlier date because the demotion occurred after Mr. Fernandez’s deposition

and after discovery closed. Id.

In response, Defendant contends that Plaintiff should not be entitled to either category of

documents because Plaintiff, during the discovery period, never propounded discovery seeking

the material now sought by Plaintiff. Def.’s Opp’n at 1. Defendant argues that Plaintiff could

have served a document request seeking documents relating to his personnel files and/or

potential candor issues for agency witnesses, but chose not to do so. Id. at 2.

A. Plaintiff is not entitled to all documents contained in Mr. Fernandez’s personnel file.

The Court agrees with Defendant that Plaintiff is foreclosed from obtaining all documents

contained in Mr. Fernandez’s personnel file. It is well settled that a trial subpoena may not be

used as a substitute for civil discovery. See, e.g., Smith v. Royal Caribbean Cruises, Ltd.,

(S.D. Fla. 2014). Here, it is undisputed that Plaintiff did not request Mr.

4 Fernandez’s personnel files during discovery, even though Plaintiff had the opportunity to do so.

Instead, Plaintiff chose not to make such a request and waited until shortly before the third

pretrial conference to seek these documents. Plaintiff does not win a second chance at discovery

of Mr. Fernandez’s personnel files, merely because Mr. Fernandez’s employment status has

changed in the three-plus years since the close of discovery on December 17, 2012.

Accordingly, the Court shall DENY Plaintiff’s motion with respect to his request for all

documents contained in Mr. Fernandez’s personnel file.

B. Plaintiff is entitled to the portions of the two letters, filed ex parte and in camera by Defendants, that concern two OPR findings relevant to Mr. Fernandez’s credibility, but only to the extent that such portions are necessary to provide Plaintiff with a good faith basis to conduct permissible impeachment of Mr. Fernandez at a de bene esse deposition and/or trial.

On January 7, 2016, Defendant submitted, ex parte for the Court’s in camera review, two

documents describing disciplinary actions taken by the FBI’s Office of Professional

Responsibility (“OPR”) and the FBI’s Security Division against Mr. Fernandez.

The first document is a thirty-six page letter, dated September 8, 2014, addressed to Mr.

Fernandez from Candice M. Will, Assistant Director of the OPR. This letter notifies Mr.

Fernandez of the OPR’s decision to dismiss him from the FBI based upon his violations of the

FBI Offense Code. The letter provides an overview of the administrative steps leading to OPR’s

decision, including Mr. Fernandez’s June 27, 2013 interview with agents from the Office of the

Inspector General (“OIG”), OPR’s written proposal of dismissal dated May 16, 2014, Mr.

Fernandez’s written response dated August 6, 2014, and a hearing that took place on August 18,

2014. The letter also describes in detail evidence on which the OPR based its findings that Mr.

Fernandez committed violations of six FBI Offense Code provisions. The letter further advises

Mr. Fernandez of his right to appeal his dismissal to the Disciplinary Review Board.

5 The second document is a four-page letter, dated July 15, 2015, addressed to Mr.

Fernandez from Clifford C. Holly, Assistant Director of the FBI’s Security Division. This letter

informs Mr. Fernandez of the Security Division’s decision to revoke his security clearance based

upon the same conduct described in the OPR termination letter. The revocation letter also

advises Mr. Fernandez that he may request reconsideration of that decision within 30 days.

Upon review of these documents, the Court finds that the disciplinary proceedings are in

no way related to Plaintiff’s retaliation claim or any of the facts underlying Plaintiff’s case. The

events at issue in the disciplinary proceedings occurred several years after the events at issue in

this case and in large part, after the close of discovery. Additionally, the events at issue in the

disciplinary proceedings primarily concern Mr. Fernandez’s personal life, rather than his

professional life, and cannot be seen as relevant to the any of the facts disputed in the present

case.

Notwithstanding the lack of relevance between the disciplinary proceedings and the

present case, the Court finds that two of the six findings issued by the OPR as part of its decision

to dismiss Mr. Fernandez are relevant to Plaintiff’s request on the grounds that these two

findings “implicate the truth and veracity of Mr. Fernandez.” Specifically, the OPR found that

(1) Mr. Fernandez violated FBI Offense Code 2.1 by providing false information on security

documents and (2) Mr. Fernandez violated FBI Offense Code 2.6 by making false statements

under oath. The other four findings issued by the OPR, however, are not probative of Mr.

Fernandez’s character for truthfulness or untruthfulness, and again, are in no way relevant to the

facts at issue in this case. Those four violations are more appropriately characterized as

“unethical acts” or acts “evince[ing] a lack of character,” which by definition would not

“implicate the truth and veracity of Mr. Fernandez.” See United States v. Millings,

,

6 123 (D.C. Cir. 1976); United States v. Lewis,

(D.C. Cir. 1980)). See also

United States v. Novaton,

(11th Cir. 2001).

In light of the two OPR findings that concern Mr. Fernandez’s character for truthfulness,

the Court finds that Plaintiff shall be entitled to limited access of the materials submitted to the

Court. The Court also notes that Plaintiff could not have discovered these materials during

discovery, as the events at issue in the disciplinary proceedings occurred after discovery closed

on December 17, 2012. Additionally, Plaintiff’s limited access to the materials would not result

in prejudice to Defendant and would not cause any undue delay, as trial is still four months

away, and the parties have not yet conducted the de bene esse deposition of Mr. Fernandez.

The Court reminds the parties, however, that any reliance on the two OPR findings to

impeach Mr. Fernandez’s “character for truthfulness or untruthfulness” is limited by the

parameters of Federal Rule of Evidence 608(b). Under that Rule, “extrinsic evidence is not

admissible to prove specific instances of a witness’s conduct in order to attack or support the

witness’s character for truthfulness.” Fed. R. Evid. 608(b). Therefore, if Mr. Fernandez admits

the offenses during a de bene esse deposition and/or trial, no further inquiry shall be permitted.

See

If Mr. Fernandez were to deny the offenses, Rule 608(b) would preclude Plaintiff from

introducing extrinsic evidence of the two OPR findings. See

Accordingly, the Court finds that Plaintiff is entitled to the portions of the two letters,

filed ex parte and in camera by Defendants, that concern the two OPR findings relevant to Mr.

Fernandez’s credibility, but only to the extent that such portions are necessary to provide

Plaintiff with a good faith basis to conduct permissible impeachment of Mr. Fernandez at a de

bene esse deposition and/or trial. Defendant shall produce to Plaintiff and the Court, prior to

January 21, 2016, redacted versions of the two letters filed ex parte and in camera by

7 Defendants in accordance with the parameters set forth in this Memorandum Opinion.

C. Plaintiff is not entitled to any other documents that may pertain to the disciplinary proceedings involving Mr. Fernandez.

In addition to the two letters filed ex parte and in camera with the Court—which Plaintiff

is entitled to access on a limited basis in accordance with the parameters discussed above—

Defendant indicated in its ex parte and in camera filing that it is also in possession of certain

additional documents pertaining to the aforementioned disciplinary proceedings involving Mr.

Fernandez, which Defendant describes as “voluminous and largely repetitive of the filed

materials.”

Having reviewed Defendant’s description of the additional documents in its possession,

which describe documents that support the conclusions of the disciplinary proceedings, the Court

cannot see how discovery of the additional documents could yield any new information that

would be “relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). In light of the

documents’ duplicative nature and the fact that the disciplinary proceedings are in no way related

to Plaintiff’s retaliation claim or any of the facts underlying Plaintiff’s case, the Court finds that

discovery of the additional documents in Defendant’s possession would not be “proportional to

the needs of the case” under Fed. R. Civ. P. 26(b)(1). See

Furthermore, to the extent that the additional documents in Defendant’s possession

contain any information that is not duplicative or the materials submitted ex parte and in camera

to the Court, Plaintiff would not be entitled to access those documents because Plaintiff did not

request discovery of such materials during the discovery period.3 Plaintiff could have served, at

the appropriate time, a document request seeking documents relating to potential candor issues

3 Although Defendant’s ex parte and in camera filing did not explicitly state as much, it does not appear to the Court that Mr. Fernandez has been subject to any investigations or disciplinary actions apart from the ones discussed in this Memorandum Opinion. 8 for agency witnesses. However, Plaintiff chose not to do so. Accordingly, Defendant shall be

required only to disclose to Plaintiff the two letters filed ex parte and in camera with the Court,

subject to the limitations described in Part II.B, supra.

D. The parties shall submit briefing on whether the existence of a pending appeal from an adverse decision affecting Mr. Fernandez’s employment is probative of whether Mr. Fernandez’s testimony would be biased in favor of the Government.

Finally, the Court notes that Plaintiff’s motion seeks documents relating to any

disciplinary proceedings involving Mr. Fernandez on the basis that such documents may contain

information related to the witness’s “bias.” See Pl.’s Mot. at 2. Plaintiff’s motion appears to

indicate that Plaintiff may seek to admit evidence of the disciplinary proceedings involving Mr.

Fernandez as part of an effort to show that the Mr. Fernandez’s testimony at a de bene esse

deposition and/or trial would be biased in favor of the Government.

As a preliminary matter, the Court shall not permit Plaintiff to introduce any evidence

regarding the subject matter of the disciplinary proceedings involving Mr. Fernandez to show

Mr. Fernandez’s bias, if any. The subject matter of the disciplinary proceedings is wholly

unrelated and irrelevant to the facts at dispute in this case. Accordingly, it is “difficult to

understand how the subject matter [of the disciplinary proceedings] would assist[] in portraying

[Mr. Fernandez] as biased[.]” United States v. Wilson,

(D.C. Cir. 2010).

The Court acknowledges, however, that notwithstanding the irrelevance of the subject

matter of the disciplinary proceedings, the mere “fact of the existence of the investigation” may,

in some circumstances, assist in portraying a testifying witness as biased. See

. In

other words, a testifying witness who is the subject of an investigation could be “motivated to

testify falsely . . . in order to curry favor with the government.”

Under this line of reasoning,

a party could, under Federal Rule of Evidence 404(b), seek introduction of evidence of the 9 existence of a pending investigation to show that a testifying witness is biased. See

It appears to the Court that this case presents slightly different facts, as here, the

investigation involving Mr. Fernandez is not pending, but appears to have been completed. In

fact, the FBI has already taken disciplinary actions that have resulted in Mr. Fernandez’s

dismissal from the FBI and the revocation of Mr. Fernandez’s security clearance. However, as

indicated in Defendant’s Ex Parte and In Camera Memorandum,4 those decisions are not yet

final. After receiving his dismissal letter from the OPR, Mr. Fernandez filed an appeal of that

dismissal with the FBI’s Disciplinary Review Board. On August 11, 2015, Mr. Fernandez

separately requested reconsideration of the Security Division’s decision to revoke his security

clearance. As a result of the pending security clearance revocation, Mr. Fernandez’s disciplinary

appeal was tentatively closed pending the resolution of the security clearance revocation. To

date, a decision on Mr. Fernandez’s request for reconsideration of the Security Division’s

decision to revoke his security clearance has not been made.

Defendant’s Ex Parte and In Camera Memorandum cites to several cases where the

existence of a disciplinary proceeding involving a testifying witness was found not to be

probative of the witness’s bias. See United States v. Dorn, No. 05-cr-013, slip op. at 13 (D.D.C.

Mar. 2, 2006) (Kollar-Kotelly, J.); United States v. Novaton,

(11th Cir.

2001); States v. Myers,

(11th Cir. 1992); United States v. Love,

(5th Cir. 1979); United States v. Amabile,

(7th Cir. 1968), vacated on

different grounds,

(1969). The Court also notes that the D.C. Circuit case cited

above, United States v. Wilson,

(D.C. Cir. 2010), may also be instructive

4 The Court relies on Defendant’s Ex Parte and In Camera Memorandum against Release of Documents for the facts regarding the current status of the disciplinary actions brought against Mr. Fernandez. 10 on the issue of whether the existence of a disciplinary proceeding involving a testifying witness

is probative of the witness’s bias.

The Court is mindful that Plaintiff has not had an opportunity to review these cases or

brief the issue. Accordingly, the Court shall provide Plaintiff the opportunity to file a

supplemental memorandum by January 22, 2016, which shall contain Plaintiff’s position, and

supporting arguments, regarding whether the existence of an appeal from an adverse decision

affecting Mr. Fernandez’s employment is probative of whether Mr. Fernandez’s testimony would

be biased in favor of the Government. The Court shall then provide Defendant until January 27,

2016 to file a response to Plaintiff’s supplemental memorandum. The Court will make an effort

to resolve the issue prior to the de bene esse deposition of Mr. Fernandez.

Finally, the Court also reminds the parties that they shall file a Joint Notice by January

21, 2016, indicating whether they have scheduled a de bene esse deposition of Mr. Fernandez. If

the deposition has been scheduled, the Joint Notice shall also include the logistical details of the

deposition, including the date and location of the deposition. See Order (Nov. 16, 2015), ECF

No. [107].

III. CONCLUSION

For the reasons discussed above, the Court shall GRANT-IN-PART, DENY-IN-PART

Plaintiff’s [100] Motion for Issuance of Trial Subpoenas. The Court finds that Plaintiff is not

entitled to documents contained in Mr. Fernandez’s personnel file. The Court also finds,

however, that Plaintiff is entitled to the portions of the two letters, filed ex parte and in camera

by Defendants, that concern two OPR findings relevant to Mr. Fernandez’s credibility, but only

to the extent that such portions are necessary to provide Plaintiff with a good faith basis to

conduct permissible impeachment of Mr. Fernandez at a de bene esse deposition and/or trial.

11 An appropriate Order accompanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

12