MSPB Law Blog

The Importance of Acknowledgment Orders in Merit Systems Protection Board Cases

By John V. Berry, Esq., www.berrylegal.com

Acknowledgment orders are very important in cases that are filed with the Merit Systems Protection Board (MSPB). These orders set the tone and deadlines for a federal employee’s appeal before the MSPB. Following the filing of a federal employee’s MSPB appeal, the first document that will be received is usually the Acknowledgment Order which will be issued by the MSPB Regional Office for that appeal. The Acknowledgment Order that the federal employee (referred to as the Appellant in MSPB cases) receives will be signed by the administrative judge that has been assigned to hear the appeal. 

The Acknowledgment Order is important to thoroughly review as soon as it is received because it contains many deadlines which are timed from the date that the order is issued, not necessarily received. The Acknowledgment Order will instruct a federal employee appealing a decision (i.e. removal, demotion, performance, whistleblower or userra cases, etc.) in several areas which are critical to their appeals before the MSPB. A typical Acknowledgment Order will inform an Appellant about the following issues:

Designation of Representative – A federal employee will be instructed as to how to name their representative in the MSPB case, if that task has not already been completed by their attorney of record. Typically, when our Firm is retained to represent a federal employee, we complete this form for our clients.

Discovery Deadlines – This is perhaps the most important portion of the Acknowledgment Order and often times one of the least well understood by appellants. It is critical that a federal employee prepares a list of all of the discovery deadlines related to the Acknowledgment Order, basing them on the date that the Acknowledgment Order is served (the date in the upper right hand corner of the first page of the Order). Typically, an appellant has 25 days from the date of the Acknowledgment Order (the date in the upper right hand corner of the first page of the Acknowledgment Order) to initiate or begin the discovery process. 

This is often overlooked when appellants represent themselves, but it is critical that an appellant engage in discovery efforts if there is to be significant hope of settlement in a case. This means that an appellant should have their requests for documents, interrogatories, requests for admission and/or depositions ready to be submitted in advance of the 25 day deadline. Sometimes, an appellant can also initiate some of their requests prior to the deadline, and then follow up with additional discovery. However, in order to determine the appropriate strategy here, it is recommended that an appellant be represented by counsel as to the correct legal strategy for such issues.

The Acknowledgment Order also provides that the agency or the appellant has 20 days to respond to a discovery request. An appellant must always keep this in mind, because if an agency does not respond to discovery (in full or in part), and the appellant has waited for more than 10 days following the non-response to take action, discovery can be deemed to be waived.

Initial Disclosures – The Acknowledgment Order also will usually provide notice that initial disclosures should be served by the agency and the appellant, on each other, within 10 days of the date that the order was issued. These disclosures provide basic information to both sides about the potential witnesses and documents that are involved in the appeal.

Settlement Forums – The Acknowledgment Order also provides information regarding a number of potential options for appellants in resolving their matters, such as the Case Suspension process, Alternative Dispute Resolution, the Mediation Appeals Program, the Settlement Judge Program and the MSPB Settlement Program. The goal of all of these programs and the procedures for seeking help from them are discussed in the Acknowledgment Order and should be evaluated by an appellant when these orders are issued.

Some Key Deadlines for an Appellant in the typical Acknowledgment Order –

a. Designate your representative (10 days after the Acknowledgement Order is issued);

b. Prepare and Send Initial Disclosures (10 days after the Acknowledgement Order is issued);

c. Serve Discovery Requests on the (25 days after the Acknowledgement Agency Order is issued);

d. Receive Discovery Requests from (Due 20 days after they are the Agency served on the Agency);

e. File a Motion to Compel if Agency (Due no later than 10 days after Does not Respond to Discovery in Response was Due) Part or in Full;

f.  Request a Case Suspension for (Due within 45 days after the Purposes of Settlement Acknowledgment Order is issued);

The above are just a few of the deadlines from the typical Acknowledgment Order, not all of them.  When facing an MSPB appeal, it is very important to have legal representation from the start of the process because many of the deadlines discussed above vary from case to case. Each case is different and requires the review of an attorney that is knowledgeable about MSPB appeals.

Federal Disciplinary Issues and Facebook: Issues to be Aware of at Work in Regards to Social Networking

By John V. Berry, www.berrylegal.com

We have seen social networking issues begin to arise in our legal practice in the context of our representation of Federal employees in the workplace.  These issues can come in all forms and Federal employees are cautioned to be careful both at work and at home with respect to information posted on such websites so that it does not become a disciplinary issue later.

Issues that are Starting to Arise

Federal agencies are starting to use information posted on Facebook, Twitter, Linked In and other social networking sites when they discipline Federal employees. 

Anything that is posted on a social networking site like Facebook or Twitter can potentially be brought back into the Federal workplace.  Some Federal agencies have already begun the process of attempting to move Facebook and other social media websites into the Federal disciplinary arena.  Vidal v. Army, 2011 MSPB Lexis 4788 (Aug. 5, 2011) (Agency removing employee because of alleged anxiety producing comment on Facebook that was reported at work).

Other Federal agencies have also attempted to discipline Federal employees where they have called in sick, but then used posted information on social networking sites to show that the employee was untruthful in using sick leave.  Hunter v. Dep’t of Navy, 2011 MSPB Lexis 3159 (May 11, 2011) (involving allegation that the appellant had called in sick to watch the Superbowl but had posted information on Facebook that he was not really sick).

Other issues that seem to be developing (but where we have not seen reported MPSB cases yet) is where Federal employees are found to have posted comments to social networking websites while at work (on duty).  All sorts of potential issues could develop in such a situation.  If an agency is looking to discipline an employee, they could potentially charge them for “time card” issues alleging that they were receiving pay but not actually working or perhaps for neglecting their duties while they were on Facebook, Twitter, etc.

The Use of Facebook and Other Social Networking Websites by Federal Agencies

Typically, the use of Facebook and other social media websites by Federal human resources officials and supervisors at Federal agencies has not been in the form of direct monitoring (which would be problematic and potentially illegal).  The real issue that has developed in the context of Federal employment is that other co-workers often times print out the postings made by other Federal employees and then report them.

Sometimes these individuals, who are “friends” or connections on social networking sites allege that the Federal employee involved has posted inappropriate, discriminatory or even harassing comments.  The most likely situation would be where a Federal employee posts inappropriate or angry comments about their supervisor and another co-worker prints out the comments and brings them into work.   

Once this information is in the hands of the Federal agency, often times they can find a legitimate connection to incorporate the issue into a disciplinary or even adverse action (removal).  While there is a right to some privacy, often times a connection (or nexus) to the Federal workplace can be found to enable the Federal agency involved to take disciplinary action related to off duty activites.   The MSPB and the Federal Circuit have generally held that off duty activities can be subject to discipline where it could cause the public or co-workers, to question or lose confidence in the Federal agency involved. See Stump v. Department of Transportation, 761 F.2d 680, 681-82 (Fed. Cir. 1985).

Conclusion

Be careful what you post on social networking sites. Also, be very careful about sharing access to your social networking sites with others at work in the Federal workplace.  If a Federal employee or supervisor finds themselves in a difficult situation as a result of using social networking websites, they should contact an attorney familiar with these types of Federal employee issues to advise them in how to best to defend against disciplinary investigations or disciplinary actions that result.  

 

Taking Depositions in MSPB Appeals

By John V. Berry, Esq., www.berrylegal.com

One of the most important rights that a federal employee has in the appeals process at the Merit Systems Protection Board (MSPB) is through the discovery procedures outlined in 5 C.F.R. § 1202.72.  The discovery process allows a federal employee to ask their federal agency for information that is relevant and important to use in their defense during their appeal.

Discovery can come in a number of forms at the MSPB: (1) the taking of depositions (taking of sworn statements from witnesses); (2) requesting documents, data or video relevant to an appeal (production requests); (3) obtaining written responses from a federal agency to specific questions in a case (interrogatories); and (4) requesting that a federal agency admit certain facts as true for purposes of a federal employee’s MSPB appeal (requests for admission).

This article focuses on what we believe to be the most important form of discovery for federal employees in most MSPB appeals, the use of the deposition. 

What is a Deposition?

A deposition is a legal proceeding where a person is questioned, under oath, in response to questions posed by an attorney.  Depositions are used at the MSPB by federal employees and federal agencies to obtain information related to a federal employee’s MSPB appeal.

For example, if a federal employee is removed for alleged misconduct, the employee’s attorney will want to depose the individuals that allegedly discovered the misconduct, the individuals that investigated the misconduct allegations and the individuals that decided to take action against the federal employee for the allegation.

Take the following hypothetical in which a federal employee is removed from their position as a result of a conduct unbecoming charge:

Hypothetical Charge:  John Smith is removed for conduct unbecoming a federal employee because, on May 12, 2012, he left work early without his supervisor’s permission or knowledge.  Before leaving, he informed co-workers Sue Jones and Jim Hanover that he was leaving early to go fishing for the day and then left without approval. 

In this type of misconduct case, the federal employee’s attorney would first want to take the depositions of the two co-workers, Sue and Jim, to determine what their recollection of the events in the case were.  Often times an individual’s recollection of events may be far different than what the agency has alleged in the removal.  An employee may also want to depose John’s supervisor if there is an issue where John is contending that the supervisor did in fact give him permission to leave early.  

How Are Depositions Conducted in MSPB Proceedings?

During the MSPB process, a deposition notice is usually first sent out to the federal agency attorney assigned to an MSPB appeal, setting a proposed time and date for depositions of relevant federal agency employees.  You can also take the deposition of non-federal agency employee witnesses, but a slightly different process is used for this whereby the attorney will first seek a subpoena from a MSPB judge prior to taking the deposition.   

Typically, the attorneys for both sides then discuss a mutually acceptable time and date for the depositions to take place and the federal agency then produces these witnesses for depositions.  The witness will be relevant to the issues in a federal employee’s MSPB appeal and will be asked questions about his or her knowledge of the issues.  Often times, the federal employee filing the appeal at the MSPB can also be deposed by the federal agency’s attorney.  In such cases, we represent the employee when they are questioned by the agency.

Depositions that we take on behalf of the federal employees that we represent are usually taken in our office unless they are out of state.  The witness will be sworn in, under oath, by a court reporter.  The court reporter will take down both the questions asked and the all witness testimony.  The length of a deposition in an MSPB case can take anywhere from 45 minutes to several hours, depending on the importance of the witness and the information that is needed. 

Once all of the questioning of a witness is completed by the federal employee’s attorney, sometimes the attorney for the federal agency may ask additional questions of the witness (although this tends not to be the case).  When the questioning is complete, the witness will either review their deposition later for accuracy or sign it or decide to waive further review. 

Subsequently, a written transcript of the deposition will be produced by the court reporter which can be used in the MSPB appeal.

How is a Deposition Helpful in the MSPB Process?

We have found that the taking of depositions in the MSPB process is very helpful and one of the most important tools available for establishing key facts in defending federal employees in their appeals.  It is also helpful for purposes of resolving cases early where you are able to disprove the allegations that were made against federal employees through the deposition process.  For instance, in the earlier example, suppose taking the deposition of John’s co-workers provided information that one of them was the acting supervisor on the day in question and had actually given John the okay to leave early.  In such cases, appeals can be resolved favorably for an employee.   

Often times, if you take depositions from agency witnesses that end up supporting the federal employee’s version of events in an MSPB appeal, it is also far easier to settle the case.  Finally, even if you are unable to resolve an MSPB case prior to the hearing stage, the depositions that you take can be used to establish the federal employee’s defenses at the hearing. Because each MSPB appeal is different with respect to the use of depositions and discovery it is important to consult with an attorney familiar in practicing before the MSPB.     

 

Discovery for Federal Employees at the Merit Systems Protection Board

By John V. Berry, Esq., BERRY & BERRY, PLLC, www.berrylegal.com

The most important consideration for an appellant/federal employee, during the course of an appeal to the Merit Systems Protection Board (MSPB), is how to best use discovery procedures to assist them in proving their appeal.  There is no other tool available to an appellant that is quite as important as fully utilizing the available discovery procedures in the context of an appeal to the MSPB.  Discovery, to be effective, requires the assistance and advice of an attorney familiar with MSPB discovery procedures. 

Engaging in Discovery with a Federal Agency

Following the filing of an MSPB appeal, a federal employee/appellant will usually receive what is known as an “acknowledgement order” from the administrative judge assigned to the case which will set the typical deadlines for the different stages of an appellant’s appeal. 

Usually, the time to initiate (begin) formal discovery is 25 days from the date on the acknowledgement order.  An appellant, however, should never wait this long to begin the discovery process.  If an appellant has not sent out the discovery requests to the agency attorney assigned to their case within the required 25-day time period, their right to discovery could be lost. 

What Can a Federal Employee/Appellant Obtain in Discovery

An appellant can obtain critical information for their MSPB appeal through the discovery process.  The discovery process can include:

(1)  The taking of depositions of important witnesses;

example 1: questioning key witnesses (supervisors, co-workers) employed by the agency in question, under oath to obtain facts helpful to an employee’s appeal.

example 2: questioning the deciding or proposing official, under oath, to determine why they sustained or proposed a disciplinary action against the appellant/federal employee.

(2)  Sending requests to the agency to produce documents in their possession relevant to a federal employee’s defense;

example 1: requesting copies of all emails between co-workers or supervisors to rebut allegations made against an employee which formed the basis for the agency’s suspension, removal, etc.

example 2: requesting copies of all similar disciplinary cases which resulted in lower penalties.

example 3: requesting copies of all policies (or certain policies) which the agency relied or did not rely upon in making the decision to suspend or remove an individual from employment.

(3)  Sending requests for interrogatories (the submission of written questions to a federal agency seeking answers in writing about issues in the case); and

example 1: sending the agency a series of written questions asking them to specify why they removed or suspended an employee and requiring a written verified response.

example 2: sending the agency a request asking them why they did not mitigate the penalty issued in the case before them to something other than removal.

(4)  Requests for admission (asking that the agency either agree or disagree with specific statements of fact related to an employee’s appeal).

example 1: asking the agency to agree or disagree with the fact that an employee had 20 years of outstanding or successful performance ratings prior to the suspension or removal.

example 2: asking the agency to agree or disagree wiht the fact that other employees within the agency have engaged in the same type of alleged misconduct and not been penalized the same as the appellant.  

In our federal employment practice at Berry & Berry, PLLC, we find that the taking of depositions tends to be the most important part of the discovery process at the MSPB and the one type of discovery which is most likely to result in uncovering previously unknown but important information.  When an individual witness is placed under oath, and asked questions about the factual circumstances in a case by the appellant’s attorney, the real story behind a suspension or removal (or other type of appeal at the MSPB) can often be uncovered and can be helpful in defending the employee.

When the Agency Will Not Respond to Discovery Requests

It is often the case that appellants, especially if they are not represented by counsel, can have a difficult time not only in drafting the necessary discovery requests in their case, but also may have real difficulties in obtaining a meaningful response from the agency’s attorney.  Keep in mind that the agency attorney has no interest in providing information to federal employees, or in being helpful to the employee in the process and often times will not respond at all.

The rules generally require that an agency respond to an employee's discovery request within 20 days from service of the requests on the agency attorney.  However, problems often develop when an agency attorney refuses to provide the materials requested or objects to specific portions of what one has requested.  It is critical, when this occurs, that an appellant have counsel who can immediately communicate with opposing counsel to resolve these discovery problems (this usually must be completed within 10 days) or who can file what is known as a “Motion to Compel” with the MSPB to ensure that the information needed from the agency is provided if no resolution to the dispute can be found.

Helpfulness of Having Counsel for Appellant When the Agency Takes Discovery

One other major consideration in the discovery process at the MSPB involves the issue of how to deal with discovery from the agency attorney.  It is important to retain counsel when facing discovery requests from a federal agency, because they have the ability to also utilize the discovery process (and usually do). 

It is often the case that an agency attorney will want to take the employee's deposition or serve them with their own written discovery requests.   It is extremely important that an appellant have counsel present to defend them at any deposition taken by the agency attorney. 

In addition, if an appellant does not respond to an agency’s written requests within the meaning of the MSPB rules, the employee's appeal before the MPSB can be jeopardized.  Agency counsel tactics can include sending unrepresented employees lengthy or burdensome discovery requests designed so that an appellant does not respond or responds partially. When this happens, the agency will usually take the issue to the administrative judge and argue that the appellant has not complied with MSPB rules, leading to a potential negative impact on the employee's ability to continue the appeal. 

Closing Thoughts

It is very important that a federal employee/appellant engaged in the MSPB appeals process seek legal advice and representation from an attorney experienced in MSPB matters as soon as possible in order to properly engage in the discovery process.  Doing so can be very helpful to establish an employee's version of facts in an MSPB appeal and also likely provides a gateway to improved settlement negotiations later with a federal agency in the appeal. 

For more advice and/or possible legal representation, federal employees can contact our law firm at www.berrylegal.com.

 

MSPB Finds Settlement Agreement Ambiguous and Reverses Dismissal

By John V. Berry, Esq., www.berrylegal.com

In Mital v. Dep’t of Agriculture, 2011 MSPB 73 (Aug 4, 2011), the Merit Systems Protection Board (MSPB) reversed the decision of the Administrative Judge who had refused to enforce a settlement agreement that had been previously worked out between the Appellant and the Department of Agriculture in an earlier case.   The MSPB reversed the Administrative Judge's decision because the settlement agreement at issue had been ambiguous and required additional fact finding to determine if it applied to Appellant's case

Background

The settlement agreement at issue had involved an earlier disciplinary case where the Appellant and the Department of Agriculture had resolved a 30-day “conduct unbecoming” suspension through a settlement agreement where the Agency agreed to reduce the suspension to 14 days.  In exchange for the Agency's reduction in penalty, the Appellant stipulated in the settlement agreement that he would “limit personal business at work to established breaks, unless granted written permission otherwise from his supervisor.”  The Appellant also agreed to resign and waive any further appeal rights should he engage in personal business at work without permission.

The Agency later alleged, a number of months after the settlement agreement had been executed, that the Appellant had been engaging in personal business at work, by contacting a friend while at work by telephone.  The Department of Agriculture then informed the Appellant that they were going to process his resignation as a result of his actions.  Appellant contested this and the Agency processed the Appellant's resignation anyway.  The Appellant then brought a petition to enforce his settlement agreement to the MSPB, claiming that the agreement required the parties to meet and attempt to resolve any non-compliance issues in “good faith” prior to taking any formal actions against him.

The Administrative Judge dismissed Appellant’s petition to enforce the settlement agreement as to his argument that the Agency had to first attempt to resolve any non-compliance on Appellant’s part prior to moving forward with Appellant’s resignation.  The specific contractual language at issue was the following settlement clause, located at Section 3(3) of the settlement agreement:

“If a party believes the other has not fully complied with one or more terms of this Agreement, that party or his/her representative shall make a good faith effort to contact the other party to discuss and seek correction of any compliance or implementation issues before taking any formal non-compliance actions.”

The Appellant appealed the dismissal of his case by the Administrative Judge to the full Board of the MSPB.  On appeal, the Board reversed the finding of the Administrative Judge, holding that:

“[T]he appellant and the agency have construed the meaning of Section 3(3) differently. The appellant construed the terms “non-compliance action” to include the agency’s actions to effect his resignation, thus obligating the agency to “seek correction” prior to effecting his resignation. The agency interpreted the terms “non-compliance action” to specifically mean a petition for enforcement with the Board, thus obligating the appellant to “seek correction” prior to filing a formal petition for enforcement but not requiring the agency to “seek correction” of the appellant’s behavior prior to effecting his resignation. The settlement agreement is susceptible to two differing, reasonable interpretations, and there is no evidence in the record regarding the parties’ intent at the time they entered into the settlement agreement. See Sweet, 89 M.S.P.R. 28, ¶¶ 13, 15. For these reason, we find that the terms of the settlement agreement are ambiguous and remand this case . . . .”

The end result in Mital was that the case was sent back to the Administrative Judge to re-open the case and to determine what the language in Section 3(3) of the settlement agreement had been intended to mean.

Legal Principles Involved in Board Review of Settlement Agreement in Mital

Some important principles in the Mital Case apply to any MSPB matters involving the enforcement of settlement agreements, and include the following important considerations:

1.  A settlement agreement is a written contract and the interpretation of such terms will be a question of law.  In construing the meaning of a written contract, the MSPB first looks to the terms of the settlement agreement to determine the parties’ intent.  Outside (Extrinsic) evidence, i.e., testimony of parties and writings, other than from the contract itself, should only be considered by the MSPB if the terms of the agreement are ambiguous (i.e. when the contract is susceptible to differing reasonable interpretations).

2.  When a settlement agreement before the MSPB is reasonably susceptible to different interpretations, and there is no evidence in the record regarding the parties' intent at the time they entered the agreement, the MSPB will find that the terms at issue are ambiguous and fact finding on the intent of the provision should be undertaken by the administrative judge.

Conclusions Regarding the Mital Case

In the Mital case, the Board of the MSPB reversed the Administrative Judge’s refusal to evaluate the Appellant’s arguments about whether the Agency had lived up to it’s obligations under the earlier settlement agreement.  This is a good case for those appellants seeking to enforce terms within a settlement agreement.  Often times, Appellants can have difficult times in pursuing enforcement of a settlement agreement before an administrative judge.  In this case, however, the Appellant decided to appeal the enforcement decision to the Board which required that the Administrative Judge evaluate the provision on remand.

After reviewing the opinion, it appears that the Board took a very fair minded view of the settlement agreement and believed that the argument put forth by the Appellant could apply as he had argued and required the Administrative Judge to specifically evaluate the issue of how the “good faith” clause was supposed to function.   This could very well require the Agency to reinstate the Appellant to his former position, along with backpay and lost benefits, depending on the evaluation of the compliance terms in this case.  

 

MSPB Reverses Federal Employee Removal Based on Due Process Violations

By John V. Berry, Esq., www.berrylegal.com

In Pickett v. Dep’t of Agriculture, 2011 MSPB 58 (June 3, 2011), the Merit Systems Protection Board (MSPB) recently affirmed the principle that due process must be provided to Federal employees in upholding an Administrative Judge’s decision which held that a Federal agency's removal action was improper because not all of the materials considered by the deciding official had been provided to the accused Federal employee.

Case Background

The Agency in this case removed the Appellant from his position as a Farm Loan Officer based on 3 alleged charges of misconduct.  During the appeal, the Administrative Judge assigned to the case hear evidence determined that the deciding official had heard and considered evidence that was outside of the record and had not been provided to the Appellant prior to his removal (and during the notice process). In particular, during the appeal, it was disclosed that the deciding official had relied significantly on a newspaper account of Appellant’s arrest in December of 2006 for allegedly disturbing the peace, and also upon rumors that the Appellant had allegedly held his wife at gunpoint.

However, neither of these issues had been included in the Agency’s notice of proposed removal, nor provided to Appellant prior to removal. The Administrative Judge, without addressing the merits of the Agency’s charges, found that the Agency had deprived the Appellant of due process of law. The Administrative Judge also ordered the Agency to cancel the Appellant’s removal and to restore him to his prior position. The Agency appealed the Pickett decision to the Board of the MSPB by filing a Petition for Review.

MSPB Findings in Pickett on Review

In the Agency’s petition for review of the initial decision, the Agency contended that the precedent relied upon by the Administrative Judge applied only to cases involving ex parte information that a deciding official receives in relation to the underlying charges of misconduct, but did not apply to information that was only used as part of the penalty determination.

The Board, on appeal, disagreed with the Agency’s position and denied the Agency’s petition for review, affirming the Administrative Judge’s ruling on the following grounds in the Pickett decision:

“Following the court’s decision in Stone, the Board developed a line of precedent holding that, where an ex parte communication does not relate to the charge itself, but relates instead to the penalty, we would not consider such an error as a denial of due process of law to be analyzed under the factors set forth in Stone; rather we analyzed the error by applying the harmful error standard in our analysis of the penalty factors.

However, the Federal Circuit recently overruled Ward and has directed the Board to consider this type of error as a due process violation under Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 1999).  See Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011).  The court further found that, even if the Board concludes that the ex parte communications did not rise to the level of a due process violation, the Board should consider the matter as harmful procedural error, and run a harmless error analysis to determine whether the procedural error required reversal, but not perform an independent analysis of the penalty.  Given this decision from our reviewing court, we note that the precedent followed in Ward, Biniak, Groeber, Westmoreland, and similar decisions has been overruled. Therefore, the agency’s argument on review is without merit.

Further, as discussed above, the record evidence here shows the administrative judge did not err in his analysis of the Stone factors. Mr. Carnegie testified that he considered information he received regarding the newspaper notice of the appellant’s arrest for disturbing the peace in December 2006 and regarding the rumor that the appellant held his wife at gunpoint. The agency’s response file contains a newspaper notice stating that the appellant was arrested for disturbing the peace on December 19, 2006, and the agency stipulated at the hearing that the newspaper notice was not provided to the appellant before the agency’s decision to remove him. Additionally, in response to the agency’s question regarding “what role . . . any rumors [he] had heard about [the appellant’s] conduct outside the office” played in his decision to remove the appellant, Mr. Carnegie testified that the rumor played “a minor role in that . . . it caused [the employees] to be more fearful . . . .” That the deciding official considered the new information and it influenced his decision weighs strongly in favor of finding that the new information was material.

Accordingly, we find that the administrative judge properly applied the Stone factors and determined that the ex parte information received by Mr. Carnegie constituted new and material information that was substantial and undermined the appellant’s procedural due process rights.”

Id.(citations omitted).

Conclusions about Pickett Case

In sum, the MSPB appears to be strengthening due process protections for Federal employees through the earlier Stone decision. In defending Federal employees in adverse action removals or lengthy suspensions, it is important to consider whether information, outside of the scope of the formal removal process, has been considered by decisionmakers.  If so, it can provide a basis for reversal of a Federal agency's adverse action. 

Often times, determining whether a due process violation has occurred is accomplished by reviewing both the proposed and final actions, because often times additional information not provided to the Federal employee is improperly included in a final decision. Another area to investigate whether or not due process materials have not been provided or considered is through the discovery process while at the MSPB (i.e. the taking of depositions and seeking written discovery).

For the types of due process issues raised in Pickett , it is important to retain counsel to evaluate the issue of whether a due process violation has occurred in adverse action cases. 

 

Defending Against Disciplinary Actions at the MSPB in 2011

By John V. Berry, Esq., www.berrylegal.com

The following article is an updated summary of the misconduct appeals process at the Merit Systems Protection Board (MSPB) in 2011 for Federal employees.

How the Misconduct Case Arrives at the MSPB

Misconduct cases arrive at the MSPB following the internal Federal agency appeals process.  Typically, a misconduct case (also known as a Chapter 75 case) against a Federal employee starts with an investigation, followed by a proposed adverse action (e.g. proposed suspension of 15 days or more, or proposed removal) at the Federal agency where he or she is employed.  There will then be a response period (for non-probationary Federal employees), where the Federal employee can submit an written response and/or request an oral response.

Following the due process response period, the Deciding Official for the Federal agency makes a decision on the proposed adverse action and if it results in a suspension of 15 days or more up to removal, an appeal can usually be taken to the MSPB seeking to overturn the Agency’s final decision and/or to mitigate the penalty issued in the case by the Deciding Official.

Filing the Misconduct Appeal with the MSPB

Following the Final Decision of the Deciding Official in appealable misconduct cases, a Federal employee typically has 30 days from the effective date of the Final Decision to appeal to the MSPB or the decision will be difficult or impossible to appeal.  See 5 C.F.R. § 1201.22(b).

The Burden of Proof in MSPB Misconduct Cases

The burden of proof in MSPB misconduct cases is whether the charges brought by the Federal agency are supported by a preponderance of the evidence.  5 C.F.R. § 1201.56 (a) (ii); Cotton v. Smithsonian Inst., 2011 MSPB LEXIS 3339 (2011).  That means, in general, that the Federal agency must prove their allegations to be more likely than not at the MSPB during the appeal.  In other words, this means that the Federal agency must prove, by 51% of the evidence presented, that the Federal employee is guilty of the misconduct charges alleged. 

For instance, if a Federal employee is suspended or removed for the alleged misuse of a government vehicle and appeals to the MSPB, the Federal agency would have to prove by 51% of the evidence produced that the employee actually engaged in the misuse.  Typically, the goal of Federal employee’s defense counsel is to defeat the factual allegations which are set forth in the Final Decision.  To do so, in our Firm’s practice of representing Federal employees, it is often critical to conduct meaningful discovery by seeking important documents from the Federal agency involved and in deposing relevant Federal supervisors and employees in an attempt to disprove the misconduct allegations.

Arguing for a Lesser Penalty in MSPB Misconduct Cases

Sometimes misconduct charges are sustained by the MSPB on appeal, but a Federal employee can argue that the penalty that had been imposed earlier by the Federal agency was unreasonable. The MSPB may mitigate the penalty to the maximum reasonable penalty for the sustained misconduct when a Deciding Official failed to demonstrate that he considered any specific, relevant mitigating factors before deciding upon a penalty, or when the chosen penalty exceeds the tolerable bounds of reasonableness. Wynne v. Department of Veterans Affairs, 75 M.S.P.R. 127, 135 (1997). Simpson v. Dep’t of Treasury, 2011 MSPB LEXIS 3286 (2011).

In addition, when not all of the misconduct charges against the Federal employee are sustained on appeal, the MSPB will consider whether the sustained charge merited the penalty imposed by the Federal agency. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 308 (1981). If fewer than all of the charges are sustained and the agency has not indicated in either its final decision or in proceedings before the Board that it desires that a lesser penalty be imposed on fewer charges, the MSPB may mitigate the agency’s penalty to the maximum reasonable penalty. Lachance v. Devall & Merit Systems Protection Board, 178 F.3d 1246, 1260 (Fed. Cir. 1999); Gray v. GPO, 111 M.S.P.R. 184 (2009).  In conducting this penalty review, the MSPB will weigh these factors with the agency’s discretionary authority to carry out its managerial functions in maintaining employee discipline and overall efficiency.  Simpson, 2011 MSPB LEXIS 3286 at *16.

Conclusions

It is important that Federal employees retain counsel as early as possible to assist them in the MSPB appeals process when facing misconduct allegations that have been previously sustained by a Federal agency.   Doing so, will provide the best opportunity to appeal the allegations at issue.  

 

 

REPRESENTING FEDERAL EMPLOYEES IN PERFORMANCE IMPROVEMENT PLANS AT THE MSPB AND BEFORE FEDERAL AGENCIES

By John V. Berry, Esq., www.berrylegal.com

It is critically important that Federal employees faced with performance issues in the Federal workplace consult an attorney as soon as possible. The longer that a Federal employee goes forward in the performance evaluation process at work, without legal representation, the more difficult it will be for an attorney to assist that individual later in the process.

The Performance Improvement Plan (PIP) usually begins following a poor performance rating. Some time may elapse, prior to a performance result and an eventual placement on a PIP, but if a Federal employee’s rating is not good, and there have been discussions or rumors about the initiation of a PIP, then the Federal employee should be prepared.

The Performance Improvement Plan or PIP

In our Firm's experience the use of a Performance Improvement Plan (PIP) is almost always the beginning of the removal or demotion process for those working at Federal agencies. It is common practice for Federal employees to be initially told that their PIP is designed as a positive benefit to them and necessary to make them better performers. Managers sometimes even promise employees that they will be given special assistance to ensure that they are successful during their PIP periods, only to later find themselves facing a potential demotion or removal some months later after having not received any sort of the promised assistance during the process.

Federal Employees Should Take a PIP Seriously as Soon as it is Issued

It is important for Federal employees to take the PIP very seriously. Federal employees should realize that there is an extremely high removal and demotion rate when a PIP is initiated. Federal employees often do not realize the serious nature of the PIP process until it is too late to effectively pass the PIP. This is why it is crucial that Federal employees on PIPs, or those that have just received a poor performance evaluation, consult with an attorney familiar in these areas as soon as possible.

A PIP is governed by Chapter 43 of the U.S. Code which requires Federal agencies to follow certain procedures in initiating performance-based actions. See 5 U.S.C. § 4302; 5 C.F.R. § 432.104. Before initiating an action for unacceptable performance under 5 U.S.C. § 4303, “a Federal agency must give the employee a reasonable opportunity to demonstrate acceptable performance and must show by substantial evidence that: its action was taken under a performance appraisal system approved by OPM; the appellant's performance standards are valid; and the appellant's performance was unacceptable in at least one of his critical elements.” Henderson v. NASA, 2011 M.S.P.B. 12, P8 (2011).

Federal statutes, regulations, and case law dealing with the PIP process emphasizes the importance of providing an employee with a meaningful opportunity to improve, as a PIP is meant to assist employees in meeting their performance goals. As 5 C.F.R. § 432.104 states, an “agency shall afford the employee a reasonable opportunity to demonstrate acceptable performance . . . As part of the employee’s opportunity . . . the agency shall offer assistance to the employee in improving unacceptable performance.”

In processing a PIP, a Federal agency typically begins by placing that employee on a Performance Appraisal Period (PAP). The Performance Appraisal Period must allow the employee a true opportunity to show his or her capabilities in the position. “An employee’s rights to a meaningful opportunity to improve . . . is one of the most important substantive rights in the entire Chapter 43 performance appraisal framework.” Zang v. DIS., 26 M.S.P.R. 155, 157 (1985). Indeed, “[t]he legislative history of the Civil Service Reform Act . . . specifically notes the opportunity to improve performance as an important aspect of a valid performance appraisal system.” Sandland v. GSA, 23 M.S.P.R. 583, 587 (1984).

As part and parcel of this meaningful opportunity to improve, generally an employee must receive the assistance promised by the Federal agency at the onset of the PIP period. Adorador v. Dep’t of the Air Force, 38 M.S.P.R. 461 (1988) (employee prevailing in Merit Systems Protection Board appeal where the agency failed to prove that it provided the assistance promised in the Notice of Unacceptable Performance). In addition, the Federal agency must also provide an appropriate level of assistance to the employee during their PIP period. Thompson v. FCA, 51 M.S.P.R. 569, 579 (1991) (MSPB holding that Federal employee did not receive promised supervisory assistance and that supervisors had predetermined the employee’s failure in PIP employee gave the Board reason to reverse the agency’s decision to remove the employee).

In Zang, the Merit Systems Protection Board found that the agency had violated the employee’s Chapter 43 rights and that the employee was denied a “fair and meaningful” opportunity to improve her performance where the employee’s supervisor did not provide guidance on how to improve, and “the counseling session given the appellant by her supervisor were often disparaging in nature.” 26 M.S.P.R. at 157. See also Beasley v. Dep’t of the Air Force, 25 M.S.P.R. 213, 215 (1984) (“Although the agency claimed that it ‘counseled’ the appellant, this counseling only consisted of the Agency merely reviewing her work product and indicating her errors”).

The Federal Employee Must Be Given a Reasonable Opportunity to Succeed

A PIP is meant to assist employees in achieving performance goals. “The agency shall afford the employee a reasonable opportunity to demonstrate acceptable performance . . . As part of the employee’s opportunity to demonstrate acceptable performance, the agency shall offer assistance to the employee in improving unacceptable performance.” 5 C.F.R. § 432.104.

The performance action should allow the employee a true opportunity to show his or her capabilities in the position. “An employee’s rights to a meaningful opportunity to improve . . . is one of the most important substantive rights in the entire Chapter 43 performance appraisal framework” (emphasis added). Zang, 26 M.S.P.R. 155 (1985). "The legislative history of the Civil Service Reform Act . . . specifically notes the opportunity to improve performance as an important aspect of a valid performance appraisal system.” Sandland, 23 M.S.P.R at 587.

Potential PIP Process Outcomes

As discussed earlier, a PIP is usually a step towards a Federal agency’s efforts in attempting to remove an employee from his or her position. A failed PIP can result in removal, demotion, or reassignment. In our experience, the result of the PIP is usually predetermined by the agency and the proposed outcome by the Agency is usually removal. PIPs tend to be 90 days in duration and the elements and the PIP itself can be complex and lengthy. Depending on the author, a PIP, without assistance, can be sometimes be designed to be very difficult to pass.

At the conclusion of the PIP process, the ultimate result will depend on the employee's performance during the PIP period. If the employee has been deemed to have an acceptable level of performance, there is no need for the Federal agency to take any action except to keep providing feedback and encouragement to the employee. If the employee is still performing unacceptably, however, the next step is for the proposing official or supervisor in charge of the PIP to determine the best solution.

The potential options following a PIP that was not completed successfully can include reassignment, demotion, or removal. If deemed unacceptable performance (which most times it is), the employee is most often proposed for removal and can be removed in a very short period of time after the decision on the PIP. Keep in mind that both at the Agency and MSPB levels there are no requirements to issue or consider the Douglas or mitigating factors. Douglas v. VA, 5 M.S.P.R 208 (1981).

Potential Defenses at the MSPB or Before Federal Agencies to PIPs

When facing a negative decision on a PIP there are some potential defenses to consider in filing an appeal at the MSPB:

1. Whether the Agency provided meaningful assistance to the Federal employee during the PIP period?

2. Whether the Agency said the employee did not perform well as to some of the portions of the PIP even though the alleged issues were not listed within the PIP?

3. Whether the Agency designed a PIP that was impossible for any employee to pass?

4. Whether or not the Agency pre-determined the outcome of the PIP for the Federal employee involved?

5. Whether the Agency provided a reasonable opportunity for the Federal Employee to improve? See Deskins v. Dep’t of the Navy, 29 MSPR 276 (1985) (employee was subjected to verbal abuse, insults, and harassment that interfered with his ability to perform on the PIP and was therefore denied reasonable opportunity to demonstrate improved performance).

Closing Thoughts on the PIP Process for Federal Employees

The most important aspect of Federal employee performance actions, before they are taken to the MSPB, is for the individual to realize the serious nature of the PIP process and obtain counsel immediately. This article is intended for only general information. Federal employee performance issues are extremely individual in nature and vary in each case. You should consult an attorney for specific legal advice. Our law firm can be reached at www.berrylegal.com for further inquiry or in providing assistance to Federal employees.

FEDERAL CIRCUIT REVERSES MSPB JUDGE ON FINDINGS OF FACT

By John V. Berry, Esq., www.berrylegal.com

The U.S. Court of Appeals for Federal Circuit in Tudor v. Dep’t of Treasury, No. 2009-3237, issued on May 9, 2011, issued a strong opinion in reversing a finding of fact made with respect to a demotion decision issued by an administrative judge of the Merit Systems Protection Board (MSPB).  These type of rulings by the Federal Circuit (involving the reversal of a decision in a MSPB case based upon unsupported facts in an initial decision) have not been frequent.  Given our law firm's practice before the MSPB, this type of decision has the potential to be helpful in federal employee appeals. 

CASE BACKGROUND

 The appellant in Tudor had been employed as a Supervisory Special Agent with the IRS Criminal Investigation office in Dallas, Texas. In that capacity, he supervised a group of IRS Special Agents investigating criminal tax fraud. An IRS Management Inquiry in response to allegations that Mr. Tudor had manipulated data entered into the agency's Criminal Information Management Inventory System (CIMIS) was initiated.  Ultimately, Agency investigators concluded that appellant had manipulated information entered in CIMIS and had circumvented IRS approval policies on a number of occasions.  Appellant was then proposed for a demotion to Investigative Analyst based on three charges.

 The deciding official then sustained all of the charges and specifications and the Appellant appealed his demotion to the Merit Systems Protection Board. The administrative judge who was assigned to the case sustained the IRS action based on 28 specifications on the first charge and the second charge of unauthorized disclosure of taxpayer information.  The administrative judge did not make conclusive determinations as to the remaining 36 specifications of the first charge, and he explicitly found that the third charge of entry of false information not to be unsubstantiated.   The Board had only two members at the time and could not rule on the appeal following the administrative judge's initial decision.

The only issue presented to the Federal Circuit was whether there was adequate evidentiary support for the administrative judge's findings related to the 28 specifications of the first charge which dealt with improper referrals of investigations to U.S. Attorneys' offices for prosecution. The Appellant had argued that his uncontradicted testimony before the administrative judge established that he was given verbal authorization by his superiors to directly refer investigations to U .S. Attorneys' offices.  The Agency disagreed, claiming, in part, that the administrative judge's finding that the Appellant did not have verbal authorization to refer investigations "was based on a virtually unreviewable credibility determination, and that the record as a whole supports the administrative judge's conclusion."

THE FEDERAL CIRCUIT REVERSAL

In vacating the decision to uphold the demotion, the Federal Circuit found that the administrative judge's characterization of some witness testimony was unsupported by the hearing transcript.  In particular, the Federal Circuit held that:

The administrative judge's finding that “[SAC] Lacenski specifically stated that he never authorized [Mr. Tudor] to make referrals to the U.S. Attorney” is therefore unsupported by the hearing transcript and cannot form the basis for discrediting Mr. Tudor's testimony to the contrary. The great deference owed to an administrative judge's credibility determination in resolving conflicting testimony, see Bieber v. Dep't of the Army, 287 F.3d 1358, 1364 (Fed.Cir.2002), is irrelevant if the testimony in question is not in conflict. 

In sum, none of the other witnesses—SAC Lacenski, Acting ASAC Tucker, Ms. King, or Mr. Parsons—contradicted Mr. Tudor's testimony that he had been given oral authority to refer investigations to U.S. Attorneys' offices for prosecution. . . . We must set aside findings when they are unsupported by substantial evidence, 5 U.S.C. § 7703(c)(3), and “[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight,” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); accord Leatherbury v. Dep't of the Army, 524 F.3d 1293, 1300 (Fed.Cir.2008). The first charge of failure to obtain appropriate approval authority must be set aside because the administrative judge did not support his finding with substantial evidence. The “deciding official, testified that the second charge of unauthorized disclosure of taxpayer information would “probably not” merit the same penalty of demotion were it to stand alone. Therefore, we vacate the Board's decision and remand for a determination of the appropriate penalty for Mr. Tudor.”

CONCLUSION

Tudor is a fairly important case given that Federal Circuit essentially overruled the factual determinations by an MSPB administrative judge and vacated the demotion decision of the MSPB on appeal.  Tudor is a good case to keep in mind when an appellant is seeking review from a MSPB initial decision which is not in line with the transcribed testimony produced at hearing.

 

 

Welcome to the MSPB Law Blog

By John V. Berry, Esq., Berrylegal.com    

Welcome to the MSPB Law Blog.  We hope to write about important legal issues facing federal employees who have appeals before the Merit Systems Protection Board.  We look forward to sharing our legal knowledge on these important topics with readers.