By John V. Berry, Esq., www.berrylegal.com
What is Harmful Procedural Error?
The Merit Systems Protection Board (MSPB) requires the reversal of a personnel decision where a federal agency commits harmful error which significantly impairs a federal employee’s rights. When a federal employee is able to show that the application of the agency’s procedures were not in accordance with statute, rule or regulation, the MSPB may order a reversal. Jones v. Dept of Treas., 93 M.S.P.R. 494, 499 (2003). In order for a harmful error to result in reversal, however, it must substantially impair the federal employee’s rights.
Specifically, in order to prove harmful procedural error, a federal employee must prove that (1) the agency committed an error in the application of its procedures; and (2) that the error is likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence of the error. 5 C.F.R. § 1201.56(c)(3). In these types of cases, the burden of proof is on the federal employee to show that the agency committed the error and that it was harmful (i.e. that the error caused substantial prejudice to his/her rights).
Examples of Harmful Procedural Error
The following are some potential examples of possible harmful procedural error cases:
A. The agency proposes removal against a federal employee and the employee attempts to respond to the proposed removal. However, the deciding official refuses to review the response and then removes the employee without having reviewed the response.
B. A federal employee is proposed for removal. The deciding official hears the federal employee’s response and arrives at a decision not to remove the employee. The agency decides, rather than issue the decision, to replace the deciding official who then removes the employee. This can be harmful procedural error.
C. The agency sustains a proposed removal on grounds other than those alleged in the proposed removal.
Need to Show Harm
In order to succeed in alleging harmful procedural error, a federal employee has to prove harm and that the error would have likely caused the federal agency to reach a different conclusion. Turner v. U.S. Postal Service, 85 M.S.P.R. 565, ¶ 5 (2000) (reversal where deciding official admitted removing federal employee for actions not listed in proposed removal); and Canary v. U.S. Postal Service, 2013 M.S.P.B. 25 (2003) (reversal where replacement of deciding official violated agency rules and where original deciding official would not have sustained the removal). In order to show harm, the federal employee needs to show a substantial violation of law, rule or regulation which can be shown to be grounds for a different result.
When a federal employee is involved in the MSPB appeals process, it is important for them to have legal advice and representation in developing legal arguments, such as harmful error, in their appeals. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located at https://www.facebook.com/BerryBerryPllc.