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.