Disciplinary Case Issues

Federal Circuit Reverses MSPB in Key Whistleblower Decision

By John V. Berry, www.berrylegal.com

The U.S. Court of Appeals for the Federal Circuit, in Whitmore v. DOL, Case No. 2011-3084 (May 30, 2012), issued a new major ruling with respect to federal employee whistleblower cases in reversing the decision of the Merit Systems Protection Board (MSPB) to dismiss Mr. Whitmore's whistleblower retaliation appeal.  

The Whitmore Decision for Whistleblowers

The case at issue involved a federal employee who had been removed from his position with the Department of Labor (DOL). The DOL, in removing the federal employee, had alleged that the federal employee's removal had been due to his alleged disruptive and insubordinate behavior while at work.  The employee, however, had alleged that the removal was the result of unlawful retaliation for his lawful whistleblowing disclosures to the DOL.

The MSPB Appeal

The federal employee appealed his removal to the Merit Systems Protection Board (MSPB) where the case was then dismissed by the assigned administrative judge.  In the proceedings before the administrative judge, most of Mr. Whitmore's witnesses on the whistleblower claims were excluded by the judge.  The full MSPB Board then affirmed the administrative judge's decision.  The employee filed an appeal of the decision to the U.S. Court of Appeals for the Federal Circuit based mostly on the fact that the administrative judge had excluded important evidence as to the whistleblowing activities by the federal employee.

The Federal Circuit Reverses in a New Major Whistleblower Decision

The Federal Circuit, in evaluating the case on appeal, found that the MSPB had improperly excluded or ignored evidence offered by the federal employee necessary to adjudicate his whistleblower retaliation claim, and had applied the law incorrectly in the dismissal.  As a result the Federal Circuit vacated the decision and remanded the case to the MSPB.  In closing their opinion, the Federal Circuit took the unusual step of reminding the MSPB about the critical responsibilities they have in whistleblower retaliation cases:

“The laws protecting whistleblowers from retaliatory personnel actions provide important benefits to the public, yet whistleblowers are at a severe evidentiary disadvantage to succeed in their defenses. Thus, the tribunals hearing those defenses must remain vigilant to ensure that an agency taking adverse employment action against a whistleblower carries its statutory burden to prove—by clear and convincing evidence—that the same adverse action would have been taken absent the whistleblowing.

Despite Robert Whitmore’s highly unprofessional and intimidating conduct, which may well ultimately justify some adverse personnel action, he is nevertheless a bona fide whistleblower. Mr. Whitmore is therefore entitled to the full scope of protection afforded by the Whistleblower Protection Act, which ensures for him and whistleblowers everywhere that they need not fear retribution for disclosing to the public such vital information concerning an agency or official as “a violation of any law, rule, or regulation, or . . . gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety . . . .” 5 U.S.C. § 2302(b)(8).

Congress decided that we as a people are better off knowing than not knowing about such violations and improper conduct, even if it means that an insubordinate employee like Mr. Whitmore becomes, via such disclosures, more difficult to discipline or terminate. Indeed, it is in the presence of such non-sympathetic employees that commitment to the clear and convincing evidence standard is most tested and is most in need of preservation."

Whitmore, at 42-43.

What the Whitmore Decision Means for Whistleblowers at the MSPB

 One of the most important issues that will result out of this decision is that administrative judges at the MSPB will now likely permit more testimony and evidence to be heard on whistleblower retaliation claims which will help to establish these claims.  The Whitmore decision makes it clear that the Federal Circuit believes that the MSPB must fully consider the evidence that an employee wishes to present in support of his or her claims under the Whistleblower Protection Act. This law firm represents federal employees in these types of federal employment matters and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an individual consultation regarding an individual’s federal employment issues. 

The full case is located at www.cafc.uscourts.gov/images/stories/opinions-orders/11-3084.pdf 



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 30 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 30 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 (30 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; or

f.  Request a Case Suspension where needed;

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. 

Contact Us

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

 


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.  

 


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 WardBiniak, 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.