Table of Penalties Issues in MSPB Appeals
06/03/2013
By John V. Berry, Esq., www.berrylegal.com
Table of Penalties issues can arise in Merit Systems Protection Board (MSPB) appeals in the context of litigation over the penalties assessed in disciplinary cases. While there is no requirement that a federal agency use a standard table of offenses and penalties (i.e. a Table of Penalties) when taking a disciplinary or adverse action against a federal employee, almost every federal agency has developed one for disciplinary and adverse action cases. Therefore, it is important to understand their importance in the disciplinary review process at the MSPB.
Table of Penalties
In MSPB appeals, often times there are issues that arise with respect to the disciplinary penalty imposed by a federal agency. In cases involving more significant disciplinary or adverse actions (i.e. terminations or long suspensions), a federal agency’s Table of Penalties can come into play and is cited in the proposed removal or suspension action.
As mentioned above, each federal agency has their own individual Table of Penalties in an attempt to standardize the penalties for charges in disciplinary and adverse actions. Of importance is the fact that the MSPB has held that a Table of Penalties is not the final say as to what an appropriate disciplinary penalty should be, but is considered one factor to be revicewed when evaluating the appropriateness of a penalty. See Davis v. Army, 56 MSPR 583, 587 n.3 (1993) (“We further note that the table of penalties is but one factor to be considered in determining the appropriateness of the penalty.”) (citing Basquez v. Air Force, 48 MSPR 215, 218 (1991)).
In practice, federal agencies have attempted to maximize the use of these Tables of Penalties in an attempt to uphold their disciplinary actions. Federal agencies attempt to employ their own Table of Penalties for a number of reasons. Typically, one of the most important reasons for a Table of Penalties is to standardize the disciplinary charging process and provide guidance to proposing and deciding officials in such cases. In our practice, we have also found that these guides are used to defend final penalties issued to a federal employee when an agency has used other, more minor penalties, for other employees in the past.
Table of Penalties Issues that Arise During MSPB Appeals
A number of issues can arise with respect to the use of a federal agency’s Table of Penalties during an MSPB appeal. For instance, federal employees can challenge the disciplinary penalty assessed in a certain case if it does not meet the description used in the agency’s Table of Penalties. See Brenner v. DOI, 116 MSPR 482 (2011) (MSPB upholding administrative judge’s ruling mitigating discipline because the federal agency had misinterpreted their Table of Penalties).
Each federal agency’s Table of Penalties differs to an extent, but sometimes the language cited by an agency does not fit the charge and penalty that was assessed. For instance, an agency may charge general misconduct, which has a range of penalties from a Letter of Reprimand to Removal for a federal employee engaging in outside employment without permission, but ignore the fact that the Table of Penalties has a lower range of discipline for outside employment violations (e.g. Letter of Reprimand to 5-day suspension).
Furthermore, it is important to pay attention to the definitions and language used in the federal agency’s Table of Penalties as it could provide a basis in which to challenge the penalty
assessed. These definitions or the application of the agency’s Table of Penalties may not be consistent with their own policy. In addition, it is important to note that often times other similarly situated employees have received lesser penalties in the past which conflict with an agency’s Table of Penalties and these need to be raised in the MSPB appeal. For instance, the federal employee may have received a termination action for being absent without leave, but other employees have received Letters of Reprimand for the same offense. It is important for these reasons to be aware of Table of Penalties issues before the MSPB.
Conclusion
When MSPB appeals Table of Penalties issues it is important to obtain the advice of counsel where potential issues might arise. An individual will want to obtain legal advice as to how the Table of Penalties will be factored into their adverse action or appeal. Our law firm stands ready to advise individuals on the issues involving MSPB appeals, disciplinary penalties and Table of Penalties issues. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.