MSPB Law Blog

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.

Contact Us

This law firm represents federal employees in these types of MSPB cases and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an individual consultation regarding your MSPB case.

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.

Contact Us

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. Please contact our office at berrylegal.com or by telephone at (703) 668-0070 to schedule a consultation.