MSPB Law Blog

MSPB Grants More Procedural Rights to Federal Employees in Security Clearance Cases

By John V. Berry, www.berrylegal.com

In McGriff v. Navy, 2012 MSPB 62 (Apr. 26 2012), the Merit Systems Protection Board (MSPB) seemed to take more interest in considering the rights of federal employees suffering from an adverse personnel action when it involves a security clearance issue.  The Board in McGriff reversed the administrative judge’s dismissal of the federal employee's appeal on the basis that there were potential procedural due process and harmful error grounds that had to be addressed by the administrative judge in the context of the suspension on security clearance grounds.

Background of McGriff MSPB Appeal

As background, McGriff was part of a full review by the MSPB of 3 other similar security clearance cases that had been grouped together as part of the review.

At issue in McGriff was the action of the federal agency (the Department of the Navy) in indefinitely suspending the federal employee involved on the basis that his access to classified information had been suspended pending final adjudication by the agency. At the time that the Navy had proposed the federal employee's indefinite suspension, solely based on a loss of access to classified information, the Navy's internal oversight agency for security clearances, DONCAF, had not yet issued a letter of intent to revoke his security clearance.

The Navy sustained the indefinite suspension in this case based on an agency policy stating that "once a command has suspended an individual's access to classified information . . . the command cannot reinstated access until DONCAF adjudicates the issues." McGriff, at 3. Apparently, there were other important issues involved, including the issue of whether the deciding official had the authority to reassign an employee rather than just place him or her on administrative leave. The deciding official in McGriff sustained the suspension. 

However, before DONCAF had issued it's decision on the federal employee's security clearance adjudication, he filed an MSPB appeal. The federal employee contended that "the agency failed to provide him with sufficient notice of the allegations against him to enable him to present a meaningful response and that the action was unwarranted."  McGriff, at 4. Based on prior precedent, the appeal was dismissed by an MSPB administrative judge that found that the federal employee had been given a reasonable opportunity to respond to the proposed suspension based on the information that had been given by the Agency. The federal employee then appealed the decision to the full Board of the MSPB, again alleging that the Navy had not provided full due process to him and a meaningful ability to respond to the allegations resulting in his suspension of access to classified information.

The Board Reviews and Reverses the McGriff Decision

The Board, in a very interesting decision, reversed the administrative judge based principally on an interpretation of the 1997 Supreme Court case of Gilbert v. Honar, 520 U.S. 924 (1997), holding:

"Pursuant to Loudermill, Stephen, Kriner and Homar, we find that the appellant was entitled to constitutional due process, i.e., notice and a meaningful opportunity to respond, upon being indefinitely suspended based on the agency’s security clearance decision. We therefore consider the Homar factors in order to determine whether the timing, place and circumstance of the procedures used in this case afforded the appellant his right to due process."

McGriff, at 14 (emphasis added).

The Board then applied the 3 factors from Homar in evaluating the McGriff case, which are: (1) The private interest affected by the official action; (2) The risk of erroneous deprivation of the interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) The government’s interest. Id. The Board, in evaluating the McGriff case under Homar found that the timing and the circumstances of the due process procedures at issue were not sufficient to warrant reversal, but found that the second factor, involving the risk of erroneous deprivation to warrant reversal to be cause for serious concern. In particular, the Board focused on the second Homar factor, i.e. the risk of erroneous deprivation of the property interest involved. The Board evaluated the case as follows:

“Here, based on the totality of the evidence, we find that the agency did have reasonable grounds to support the suspension. Specifically, on March 5, 2009, it received an IG hotline complaint that the appellant was involved in a private business owned by his spouse, NetAnalysis Consulting LLC, and had attempted to secure government contracts for the business using his government e-mail account and official time. The subsequent Report of Investigation concerning that IG complaint indicated that the investigation substantiated allegations of conflict of interest, misuse of government equipment, conflicting outside employment and activities, misuse of official time, and misuse of subordinate’s time. In a June 3, 2009 memorandum, Capt. Purnell of the agency’s Judge Advocate concluded that the IG’s investigation and report were legally sufficient and substantiated the appellant’s violation of 16 various laws and regulations.

Conversely, DONCAF had neither fully investigated, nor finally decided, whether it would permanently revoke the appellant’s security clearance when the agency indefinitely suspended him. . . . [O]verall, we conclude that the agency did have reasonable grounds to support the appellant’s suspension. Moreover, we reject the appellant’s assertion that the agency failed to provide him with the specific reasons for the action before he responded to the proposal notice, thereby denying him a meaningful opportunity to respond. To the contrary, we find that the notice of proposed indefinite suspension, coupled with the notice of temporary suspension of the appellant’s security clearance, gave the appellant sufficient information to enable him to respond to the agency’s proposed indefinite suspension."

McGriff, at 15-17 (emphasis added) (internal citations omitted).

The Basis for Reversal in McGriff

After dismissing the initial parts of the federal employee’s arguments on appeal, the Board then reversed the administrative judge’s dismissal based on the potential that procedural due process concerns still existed, holding that: “Nonetheless, a significant question exists as to whether the appellant had a meaningful opportunity to respond to the proposed indefinite suspension such that the procedures that were used posed a risk of erroneous deprivation of the appellant’s property interest. Providing an appellant with a reasonable opportunity to reply that satisfies constitutional due process requires more than mere notice; the reply opportunity may not be an empty formality, and the reply or deciding official should have authority to take or recommend agency action based upon the reply.“

McGriff, at 17.

Applying these principles to McGriff, the Board found that there were real questions about whether the deciding official had lacked the authority to change the initial decision to suspend the federal employee involved or whether the deciding official was in fact barred from permitting reassignment while a security clearance matter was pending. The record had appeared to demonstrate that the deciding official on the suspension had lacked authority to take any action other than to affirm the proposed suspension prior to DONCAF’s clearance adjudication. The Board then reversed the administrative judge’s dismissal, finding the following: “If the deciding official lacked the authority to do anything but affirm the indefinite suspension, the procedures used in effecting the appellant’s indefinite suspension sufficiently ran the risk of an erroneous deprivation of his property interest in employment such as to find that the agency violated his right to constitutional due process.” McGriff, at 19-20. The Board further found that, on remand, that the federal employee could attempt to also prove that the Navy had not followed their own internal regulations in regards to the processing of the federal employee’s security clearance. 

The Board found that if this was demonstrated, the federal employee could potentially show that harmful error had occurred. Specifically, the Board held that: “Under 5 U.S.C. § 7511(c)(2)(A), the Board will not sustain an adverse action if the appellant shows harmful error in the application of the agency’s procedures in arriving at the decision under appeal. Therefore, even when an appellant fails to establish a violation of constitutional due process, he may still show that the agency committed harmful error in failing to follow the required statutory procedures or the agency’s own regulations.” McGriff, at 20.

What the McGriff Case Means for Security Clearance Matters

The McGriff case is important because it leaves an opening to meaningfully challenge the security clearance procedures used by federal agencies (and the failure to follow them) in suspending a federal employee on the basis of his security clearance at the MSPB. The issue here is likely not settled here as the matter has to go back to the administrative judge, and from there likely back to the Board (and perhaps to the Federal Circuit), but it provides a new legal argument for future appeals where a federal agency does not provide due process in matters related to security clearance appeals and/or does not follow their own internal procedures for processing these types of cases.

Each MSPB appeal is unique and it is recommended that federal employees obtain legal counsel to evaluate the full impact of their individual cases. Should you need legal assistance in an MSPB or security clearance matter, you can contact our Firm at www.berrylegal.com to go over your individual appeal.

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., 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 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.