Mark W. Guttenberg v. Department of Homeland Security

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARK W. GUTTENBERG,
Petitioner
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent
______________________
2025-1081
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-0752-23-0042-I-1.
______________________
Decided: August 5, 2026
______________________
JEFFREY H. JACOBSON , Jacobson Law Firm, Tucson,
AZ, argued for petitioner.
STEPHANIE F LEMING , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent. Also represented by
ELIZABETH M ARIE H OSFORD , PATRICIA M. M CCARTHY,
BRETT SHUMATE .
______________________
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GUTTENBERG v. DHS 2
Before D YK and REYNA, Circuit Judges, and BISSOON ,
Chief District Judge.1
BISSOON , Chief District Judge.
Mark W. Guttenberg petitions for review of a Merit
Systems Protection Board (“Board”) decision upholding his
removal from service for conduct unbecoming a deportation
officer and lack of candor. We affirm.
B ACKGROUND
In 2006, the Department of Homeland Security Immi-
gration and Customs Enforcement (“agency”) hired Mr.
Guttenberg as an Immigration Enforcement Agent in
Phoenix, Arizona. At some point thereafter, his title
changed to Deportation Officer. Mr. Guttenberg remained
employed as a Deportation Officer, a law enforcement po-
sition, until his removal from federal service.
On or about October 11, 2020, Mr. Guttenberg discov-
ered that his vehicle had been burglarized while parked in
his home garage and that personal items, including his law
enforcement credential wallet, badge, and government
travel card, had been stolen.
After reporting the theft to his supervisor and calling
911, Mr. Guttenberg, along with his roommate and a fe-
male friend, Cayanne Nelson, began searching the neigh-
borhood for the items. While searching through trash bins
near a single-story apartment building, the trio encoun-
tered apartment resident Cameron Bradford. Mr. Bradford
told Mr. Guttenberg to “get the fuck out of my trash can,”
and a verbal altercation between the two ensued. J.A.
1 Honorable Cathy Bissoon, Chief District Judge,
United States District Court for the Western District of
Pennsylvania, sitting by designation.
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GUTTENBERG v. DHS 3
1843.2 Although the altercation never became physical,
Mr. Guttenberg admits exchanging words and that he
knocked over Mr. Bradford’s recycling bin at one point, af-
ter which Mr. Bradford stepped back out of his sandals.
Mr. Bradford headed back toward his apartment, and
Mr. Guttenberg asked him if he was going to get a gun,
adding something like, “You better get a gun.” J.A. 2301.
Mr. Bradford returned with a cell phone, called 911, and
reported the incident. Mr. Bradford alleged that, before he
called the police, Mr. Guttenberg threw his sandals onto
the apartment roof. Mr. Guttenberg denied doing so. The
responding officers interviewed Mr. Bradford, Mr. Gutten-
berg, and other witnesses about what occurred. Mr. Brad-
ford declined to press charges, and Mr. Guttenberg was not
arrested, although he was warned not to trespass on Mr.
Bradford’s property. The officers also took Mr. Gutten-
berg’s statement as to the earlier theft of the items from
his car.
Mr. Guttenberg did not report the October 11, 2020 al-
tercation to the agency. The agency learned of the incident
on or about October 26, 2026, when it obtained the police
report in the course of investigating the theft of Mr. Gut-
tenberg’s government property.
After conducting phone interviews to obtain additional
information, the agency referred the matter to the Office of
Professional Responsibility (“OPR”). The OPR investigator
reviewed the previously obtained police reports, body cam-
era footage, and summaries of witness interviews. He also
interviewed Mr. Guttenberg under oath. On February 9,
2021, the investigator issued a Report of Investigation that
considered each of three allegations: (1) that Mr. Gutten-
berg failed to report off-duty contact with law enforcement;
2 Citations to “J.A.” refer to the Joint Appendix filed
by the parties at Dkt. No. 25.
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GUTTENBERG v. DHS 4
(2) that he was verbally confrontational towards a civilian
and law enforcement during the incident; and (3) that he
failed to safeguard his Government-issued items. The Re-
port referred these three allegations to management for
consideration of agency action.
On September 2, 2021, the Deputy Field Office Director
proposed removal of Mr. Guttenberg from service for (1)
failure to safeguard Government property, (2) conduct un-
becoming a Deportation Officer, and (3) failure to report
off-duty contact with law enforcement. Mr. Guttenberg re-
sponded to the proposed removal in writing. On March 24,
2022, the agency rescinded the September 2021 notice and
issued a notice re-proposing removal based on three rea-
sons: (1) conduct unbecoming a Deportation Officer; (2) fail-
ure to report off-duty contact with law enforcement; and (3)
lack of candor.
The conduct unbecoming an officer charge contained
three specifications: (1) kicking over the trash bin and vio-
lating applicable city code provisions prohibiting searching
through legally placed trash bins without permission; (2)
the aggressive conduct toward Mr. Bradford; and (3) the
“uncooperative and argumentative conduct,” J.A. 215, to-
ward the responding officer. The failure to report charge
contained one specification: violation of agency policy re-
quiring agency officers to report within 48 hours certain
off-duty contact with local law enforcement. The lack of
candor charge contained two specifications based on Mr.
Guttenberg’s failure to disclose to the responding officer
and the OPR investigators respectively that he threw Mr.
Bradford’s sandals onto the roof. The proposal noted that
the agency “depends on the public’s trust in [its] law en-
forcement staff to treat members of the public with dignity,
professionalism, and care, even in the face of provocation,”
J.A. 216, and concluded that Mr. Guttenberg’s conduct
failed to comply with the agency’s Employee Code of Con-
duct.
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GUTTENBERG v. DHS 5
The proposal found that the lack of candor reason
alone would justify Mr. Guttenberg’s removal. Even absent
that reason, based on the conduct unbecoming charge, the
investigator felt that removal “would still be appropriate
because of [Mr. Guttenberg’s] record of prior discipline,
pattern of conduct unbecoming towards members of the
public and persons in position of authority, and lack of re-
morse.” J.A. 218. Mr. Guttenberg’s prior disciplinary his-
tory included a nine-day suspension for an August 2013
incident in which he insulted Department of Motor Vehicle
workers and “flashed [his] badge to attempt to get them to
more promptly process [his] transfer of title request,” J.A.
217, and a five-day suspension for a March 2019 incident
in which he handcuffed Ms. Nelson and called 911 in the
course of a self-described “citizen’s arrest,” id. When the
responding officer notified Mr. Guttenberg he considered
him a potential suspect for domestic violence and disor-
derly conduct toward Ms. Nelson, Mr. Guttenberg repeat-
edly invoked his own status as a law enforcement officer in
an attempt to avoid scrutiny. The report concluded that
Mr. Guttenberg could not be rehabilitated because he had
“failed to accept any responsibility for what had happened
or acknowledge wrongdoing.” J.A. 218. Mr. Guttenberg re-
sponded to the proposal both orally and in writing, incor-
porating by reference his objections to the prior rescinded
notice.
On July 11, 2022, the agency's deciding official sus-
tained both the conduct unbecoming and lack of candor
charges, including all associated specifications. The official
did not sustain the failure to report charge because the rec-
ord did not establish that Mr. Guttenberg was aware that
he was required to report that type of off-duty contact with
law enforcement.
In determining the appropriate penalty, the deciding
official turned to the factors outlined by Douglas v. Veter-
ans Administration, 5 M.S.P.R. 280 (1981), including the
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GUTTENBERG v. DHS 6
mitigating factors of Mr. Guttenberg’s fifteen years of fed-
eral employment; his strong performance reviews; all let-
ters of support from his coworkers; and his personal stress
at the time of the incident. The official determined that
none of the mitigating factors “outweigh[ed] the serious-
ness of [Mr. Guttenberg’s] misconduct and its negative im-
pact on [his] ability to testify on behalf of the [a]gency in
civil or criminal proceedings.” J.A. 66. The official further
concluded that each of the conduct unbecoming or lack of
candor charges, by itself, would be sufficient to support re-
moval. The official found Mr. Guttenberg’s “entrenched
pattern” of misconduct “deeply troubling” and did not be-
lieve that he could be rehabilitated because his two in-
stances of prior discipline proved ineffective and because
he had failed to “acknowledge genuine responsibility for
[his] misconduct.” Id. Mr. Guttenberg signed and acknowl-
edged receipt of the removal decision on July 11, 2022, and
was removed from federal employment.
Mr. Guttenberg appealed his removal to the Board.
Following a hearing, the administrative judge (“AJ”) sus-
tained the two charges against Mr. Guttenberg, found that
the agency proved the nexus between the misconduct and
the efficiency of the service, and upheld the penalty of re-
moval. The AJ also considered and rejected Mr. Gutten-
berg’s argument that the agency failed to provide him due
process of law.
Mr. Guttenberg petitioned for full Board review of the
AJ’s initial decision. On August 16, 2024, the Board af-
firmed the initial decision, and it became the Board’s final
decision. Mr. Guttenberg timely petitioned for review of the
final decision to this court. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
DISCUSSION
We may set aside the Board’s decision only if it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
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GUTTENBERG v. DHS 7
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). “We review the Board's legal decisions
de novo and its findings of fact for substantial-evidence
support.” Reyes v. Merit Sys. Prot. Bd., 159 F.4th 1356,
1359 (Fed. Cir. 2025). “The petitioner bears the burden of
establishing error in the Board's decision.” Harris v. Dep't
of Veterans Affs., 142 F.3d 1463, 1467 (Fed. Cir. 1998).
I
Mr. Guttenberg first argues that his due process rights
were violated because the agency, before terminating his
employment, failed to disclose the Douglas factors analysis,
failed to consider his prior written responses, failed to con-
duct a reasonable inquiry into missing evidence, and im-
permissibly stacked the lack of candor specifications. These
arguments are without merit.
The Board correctly held that no due process violation
occurred. Due process dictates that a deciding official is not
allowed to consider—either in connection with the charge
itself or the penalty—new and material information he ob-
tained ex parte. Ward v. U.S. Postal Serv., 634 F.3d 1274,
1280 (Fed. Cir. 2011). Information is considered having
been obtained ex parte if the appellant was not informed it
would be taken into account. Lopes v. Dep’t of the Navy, 116
M.S.P.R. 470, 475 (2011). We have set forth three factors
relevant to whether a due process violation has occurred
because of consideration of information not included in the
notice of proposed removal: 1) whether the information is
new or merely cumulative; 2) whether the employee knew
of the error and had an opportunity to respond; and 3)
whether information was of the type likely to result in un-
due pressure on the deciding official to rule in a particular
manner. Stone v. FDIC, 179 F.3d 1368, 1377
(Fed.Cir.1999).
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GUTTENBERG v. DHS 8
That Mr. Guttenberg was not provided a copy of the
deciding official’s Douglas factors worksheet until he filed
his appeal does not implicate due process. As the Board
found, the checklist was not an evidentiary document that
the deciding official received in determining an appropriate
penalty. Rather, he created the list as part of the decision-
making process through which he analyzed evidence other-
wise of record. Thus, due process did not entitle Mr. Gut-
tenberg to review and reply to the document.
That the deciding official did not consider Mr. Gutten-
berg’s written response to the rescinded notice of proposed
removal, or the affidavit from Ms. Nelson attached thereto,
likewise does not violate due process. It is undisputed that
Mr. Guttenberg failed to supply copies of those documents
to the deciding official and merely incorporated them by
reference. It also is uncontested that the deciding official
was not involved in the first proposed removal action and,
thus, had no prior familiarity with those materials. We
agree with the AJ that the “incorporation by reference” lan-
guage did not serve to add documents to the record before
the deciding official. Mr. Guttenberg was permitted to pro-
vide written and oral replies to the March 2022 proposed
removal, and the deciding official considered those submis-
sions. If Mr. Guttenberg wanted the deciding official to con-
sider the materials at issue, he could have attached them.
Mr. Guttenberg’s challenge to the sufficiency of the
agency’s inquiry into the “lack of photographic evidence”
that he threw Mr. Bradford’s flip-flops onto the roof does
not raise due process concerns. As Mr. Guttenberg
acknowledges in his brief, whether an agency’s investiga-
tion is thorough is not a proper basis for determining
whether a charge or specification is sustained. Uske v. U.S.
Postal Serv., 60 M.S.P.R. 544, 550 (1994); aff’d, 56 F.3d
1375 (Fed. Cir. 1995); Soc. Sec. Admin. v. Carr, 78 M.S.P.R.
313, 334 (1998). The fact that original photographs of the
flip-flops were not produced is immaterial. The record in-
cluded body-cam footage and pdf versions of the photos,
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GUTTENBERG v. DHS 9
and the AJ found no reason to doubt their authenticity. The
Court may not substitute its judgment for that of the Board
as to the weight of the evidence or the inferences to be
drawn. Cross v. Dep't of Transp., 127 F.3d 1443, 1448 (Fed.
Cir. 1997). Mr. Guttenberg has not identified any duty or
procedure breached by the agency or any harm to himself
caused by the consideration of the photographs in the form
presented.
Mr. Guttenberg’s final “due process” challenge – that
the two lack of candor specifications were duplicative and
should have been merged – is of no moment. Although both
specifications involve the flip-flop incident, they concern
not the throwing of the shoes, but Mr. Guttenberg’s lies
about the same. Because the misrepresentations were
made to two different entities—the police (specification 1)
and the OPR investigators (specification 2)—they were not
duplicative and did not violate due process.
II
Mr. Guttenberg next challenges the board’s finding of
a nexus between his off-duty conduct and the efficiency of
the service. We disagree. The Board’s test for nexus in off-
duty misconduct cases requires:
(1) a rebuttable presumption of nexus that may
arise in “certain egregious circumstances” based on
the nature and gravity of the misconduct,
(2) a showing by preponderant evidence that the
misconduct adversely affects the employee’s or his
coworkers’ job performance or management’s trust
and confidence in the employee’s job performance,
[or]
(3) a showing by preponderant evidence that the
misconduct interfered with or adversely affected
the agency’s mission.
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GUTTENBERG v. DHS 10
Kruger v. DOJ, 32 M.S.P.R. 71, 74 (1987). We review the
Board's nexus findings for substantial evidence. Brown v.
Dep't of the Navy, 229 F.3d 1356, 1358–59 (Fed. Cir. 2000).
Here, the AJ found that the agency established by pre-
ponderant evidence that Mr. Guttenberg’s misconduct ad-
versely affected his ability to perform his job duties and the
agency’s trust and confidence in his ability to do so. Sub-
stantial evidence supports this finding. As the AJ ex-
plained, Mr. Guttenberg’s duties included interacting with
law enforcement officers from outside the agency, and his
uncooperative interactions with the responding officer on
October 11, 2020 could impact his ability to interact with
such officers in the future. Additionally, Mr. Guttenberg’s
lack of candor in speaking with the officer is potential im-
peachment information that the agency would have to dis-
close to prosecutors under its policies, rendering him
Giglio-impaired. Because the AJ did not rely on prong one
of the nexus test, the “egregiousness” element on which Mr.
Guttenberg focuses is irrelevant.3
Mr. Guttenberg’s additional arguments challenge the
sufficiency of the evidence and credibility determinations.
Under the governing deferential standard of review, how-
ever, it is not our task to reweigh the evidence. See Jones
v. Dep’t of Health & Hum. Servs., 834 F.3d 1361, 1369 (Fed.
Cir. 2016). Here, the AJ applied all appropriate evidentiary
standards and, as set forth above and in her written deci-
sion, supported her factual findings with substantial evi-
dence. In addition, the AJ meticulously applied the
applicable credibility criteria set forth in Hillen v. Depart-
3 The AJ further found that the agency established
the requisite nexus with respect to the appellant’s on-duty
misconduct in lacking candor during an interview with
OPR.
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GUTTENBERG v. DHS 11
ment of the Army, 35 M.S.P.R. 453, 458 (1987), to the wit-
ness testimony, including the testimony of Mr. Bradford.
An AJ’s credibility determinations are “virtually unreview-
able on appeal,” Briley v. Nat'l Archives & Recs. Admin.,
236 F.3d 1373, 1377 (Fed. Cir. 2001), and “[f]indings that
turn on credibility are upheld unless the quality and
weight of the evidence are such that no reasonable trier of
fact” could reach the contested conclusion, Morgan v. Dep’t
of the Army, 934 F.2d 310, 312 (Fed. Cir. 1991). Although
Mr. Guttenberg naturally prefers his self-serving version
of events, he offers no basis to disturb the AJ’s well-rea-
soned credibility determinations in this case.
CONCLUSION
We have considered Mr. Guttenberg's remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm the final judgment of the Merit Systems
Protection Board.
AFFIRMED
COSTS
No costs.
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