MSPB Law Blog

The MSPB Petition for Review – Considerations in Filing an Appeal

By John V. Berry, Esq., www.berrylegal.com

Federal employees that have filed appeals with the Merit Systems Protection Board (MSPB) are sometimes faced with an adverse Initial Decision from an MSPB administrative judge who has heard their appeal. In such instances, they are entitled to appeal the adverse decision to the full board of the MSPB (a 3 member review board) by filing a Petition for Review, also known as a PFR.

THE ADVERSE MSPB INITIAL DECISION

When a final decision is issued by an MSPB administrative judge, it is referred to as the Initial Decision. The Initial Decision can be appealed by either the federal employee or the federal agency involved in the appeal, and possibly both sides could have cross-appeals as to different parts of the Initial Decision.

CONTENTS AND TIMING OF THE PETITION FOR REVIEW

The Petition for Review or PFR as it is sometimes known is an appeal of the Initial Decision. It must be filed by a party within a very short time period, typically 35 days after the Initial Decision is issued by the administrative judge. A Petition for Review must outline the legal reasons as to why the result should be overturned or modified by the board of the MSPB. For this reason, it is very important to seek counsel familiar with the MSPB, as soon as possible, to assist a federal employee when considering filing a Petition for Review.

Some of the most common grounds for an appeal include:

(1) that the Initial Decision contained erroneous findings of fact (e.g. that the Initial Decision made findings of fact that were not in line with the testimony and evidence presented during the hearing);

(2) that the Initial Decision was based on an erroneous interpretation of a law or regulation (e.g. that the Initial Decision incorrectly applied or construed a statute, regulation or existing caselaw);

(3) that the administrative judge’s rulings were not consistent with required procedures, which affected the outcome of the appeal; and

(4) that new and material evidence or legal argument, that was not available earlier, is available now but was not when the record closed.

The MSPB also reserves the general authority to rule on issues that is finds important in appeals before them. 

When a Petition for Review is filed by a federal employee, the federal agency will generally have 25 days from the date of the service of the Petition for Review to respond to the arguments in the appeal. Once the agency files their response (most likely an opposition to the federal employee’s Petition for Review), then the federal employee will have 10 days from the date of the service of the agency’s response to reply to the issues raised by the agency.

A Petition for Review should be drafted by an attorney familiar with practice before the MSPB. Typically, these petitions should include a description of the background of the facts and procedure which led to the Petition for Review and also clear legal arguments which outline the issues for ruling by the Board. The rules on the content of Petitions for Review changed in October of 2012 and the MSPB added some changes to the procedures for filing this type of appeal. A Petition for Review or an agency’s reply to a Petition for Review is limited to 30 pages (or 7500 words, whichever is less) and the federal employee’s reply to an agency response is limited to 15 pages (or 3750 words, whichever is less). Even with these page limitations, the general goal for a good Petition for Review should be to attempt to prepare the appeal in the most concise (and to the point) manner as possible.

RULINGS BY THE BOARD

It is hard to estimate the amount of time that it takes for the Board to issue a ruling on Petitions for Review because the time tends to vary from case to case. From our experience, it has taken about 5-6 months from the filing of a Petition for Review until we receive a ruling on an appeal filed with the Board.  Should the ruling on the Petition of Review go against a federal employee, there remains an additional opportunity to file an appeal with the U.S. Court of Appeals for the Federal Circuit.   

CONCLUSION

When filing a Petition for Review before the MSPB it is important to understand the proper grounds for filing an appeal and to seek legal advice from counsel with experience before the MSPB before filing. This law firm represents federal employees in matters before the MSPB and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an individual consultation to evaluate individual MSPB appeals or Petitions for Review.

MSPB Reduces Overpayment Schedule for FERS Annuitant

By John V. Berry, Esq., www.berrylegal.com

The MSPB, in an interesting decision, reduced the repayment obligations of a FERS annuitant.  The case, Boone v. OPM, 2012 MSPB 132 (2012), involved a petition for review of an initial decision which had affirmed OPM’s decision that a FERS annuitant had been overpaid in annuity benefits.  The appellant in Boone had sought a waiver of the overpayment of the retirement benefits through OPM and the MSPB.

While the MSPB in Boone ultimately decided not grant the waiver to the appellant on the basis of the facts in the case, it did however order that overpayment benefits be repaid at a much reduced rate.  The MSPB found that because the appellant’s monthly expenses exceeded her monthly income that it must reduce the monthly repayment amount to OPM.  In this case, the repayment obligations, through the appeal, were reduced from $98 a month to $5 a month, a significant reduction.  I have attached a link to this MSPB case. Boone v. OPM

When OPM orders repayment regarding retirement benefits that have been paid it is important to obtain advice from counsel to determine whether or not a waiver is possible, and if not whether or not one qualifies for a reduction in the repayment schedule to OPM. Our law firm handles these types of federal retirement matters and can be contacted at either www.berrylegal.com  or by telephone at (703) 668-0070.  

Settlement of Cases at the Merit Systems Protection Board (MSPB)

By John V. Berry, Esq., www.berrylegal.com  

Federal employees whose cases are pending before the Merit Systems Protection Board (MSPB) have a number of options, in addition to litigating their cases to the hearing stage, in order to attempt to resolve their appeal. This article concerns the settlement process at the MSPB whereby federal employee - appellants and their federal agencies (Agencies) attempt to reach settlement prior to the MSPB hearing and decision stage.

The Settlement Process

The settlement process at the MSPB can start at any point in the life of an
individual MSPB case.  Typically, it is good practice for an appellant to approach the Agency early in an attempt to resolve a case if settlement is a goal.  Agency attorneys generally are assigned to MSPB cases about a week to 10 days after the MSPB appeal is first filed.  Once the attorney assigned to the case for the federal agency involved is known, informal settlement talks can began. 

Types of Settlement Options at the MSPB

When a federal employee’s case is filed at the MSPB, there are a number of different options to attempt settlement. The key to all of MSPB settlement programs is that both parties are in agreement to at least attempt to settle a matter. If one party is unwilling to mediate or attempt settlement in an MSPB case then these processes will not work. 

The available settlement options at the MSPB include: (1) informal mediation with Agency counsel; (2) the Mediation Appeals Program; (3) the Settlement Judge Program and (4) the MSPB Settlement Program. As you can see, the MSPB has a number of venues available to facilitate settlement. There are distinctions between each kind of settlement venue and different strengths for each type:

(1) Informal Mediation with Agency Counsel – This is an informal process, usually at the start of an MSPB case, where the two attorneys assigned to the case discuss settlement proposals and attempt to resolve the appeal. Often times this can be the quickest process for attempting to resolve a case.

(2) The Mediation Appeals Program – In this type of settlement process, a mediator from the MSPB is assigned to encourage settlement. This is a more formal setting and usually conducted in person. This process can be helpful as parties are face to face with one another, with a mediator that is assigned to meet with and attempt to facilitate settlement.

(3) The Settlement Judge Program – This settlement process involves the assignment of another administrative judge, different from the one assigned to hear the case, in an attempt to help the parties facilitate settlement. Settlement judges usually conduct settlement meetings by telephone, as opposed to face to face meetings, in an attempt to settle these cases.  These settlement judges can offer frank discusions about their thoughts on an individual case without having to later rule on the issues involved.  A settlement judge is not connected to the ongoing litigation.  We have found that the judges in this settlement process tend to be very flexible and helpful in attempting to resolve cases.

(4) The MSPB Settlement Program – In this type of settlement process, the MSPB judge assigned to hear the case at the hearing stage discusses settlement with the parties as case moves towards the hearing stage. The judge in this case is already familiar with the issues in the MSPB appeal and is well suited then to discuss the possibility of settlement in these types of cases. Typically, settlement discussions in this process occur at pre-determined times in a case (e.g. shortly after the case is assigned to the administrative judge or at the pre-hearing stage).

MSPB Approval of Settlement Agreements

Following a successful settlement agreement, the parties will submit the agreement to the administrative judge assigned to hear the case. The administrative judge will review and then (in most cases) accept the settlement agreement into the record for enforcement purposes if needed. Once accepted, the administrative judge will then dismiss the MSPB appeal as settled and the case will come to a conclusion.

Enforcement of Agreements

Although it rarely happens, following the execution of a settlement agreement, the MSPB has a mechanism to ensure that a settlement agreement that is placed in the record is adhered to. Typically, if this becomes an issue for a client, our first step is to contact Agency counsel in an attempt to quickly resolve the issue before seeking to enforce a previously agreed to settlement. Typically, this has not been an issue in cases that our firm has handled, but does provide protection for a federal employee that has decided to resolve their MSPB case through settlement.

Closing Thoughts on the Settlement Process at the MSPB

When attempting to settle a case at the MSPB it is important to have counsel representing the federal employee involved. Often times, this can make a difference in the ability to settle a case on favorable terms with the federal agency involved. 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 MSPB cases and the settlement process.

MSPB Applies New Rules to the Processing of MSPB Cases

By John V. Berry, Esq., www.berrylegal.com

The Merit Systems Protection Board (MPSB) has issued new regulations, as of October 12, 2012, which provide some substantial revisions to the existing procedural rules for processing MSPB cases.  The new rules, published in the Federal Register, are attached here Download MSPB Rule Changes.  The rules take effect on November 13, 2012.   

Some of the highlights in the new rules issued by the MSPB for case processing include:

1.         Case Suspensions:  In the past, case suspensions for purposes of
discovery or settlement were limited to 30 days.  In the new rules, an administrative judge can grant up to 60 days for the case suspension process in 2 increments of up to 30 days each.  Case suspensions have the effect of pausing many aspects of a case and the pending hearing process while the parties attempt to either resolve a case or complete discovery efforts.  See 5 C.F.R. § 1201.28.

2.         Initial Disclosures:  The MSPB has abolished the initial disclosure requirements.  These types of disclosures are due early, within 10 days, and were repetitive. This change will help to streamline the discovery process in MSPB cases.
See 5 C.F.R. § 1201.73.

3.         Deadline to Initiate Discovery:  The deadline to initiate discovery (i.e. depositions, interrrogatories, production of documents requests and admissions) had been extended from 25 days to 30 days.  This is a good change and gives an
appellant the opportunity to obtain more information about their case before filing their discovery requests with the agency.  See 5 C.F.R. § 1201.73 (d)(1).

4.         Petitions for Review (PFR):  PFRs by an appealing party are now limited to 30 pages.  Defending parties are also then limited to 15 pages for their responses to PFRs.  In addition, the grounds for filing a PFR have been broadened.  Specifically, the MSPB notes, in their new regulations, that they can grant a PFR when “[t]he case is incorrectly decided on the existing record.” This is a welcome change and eliminates some of the deference that has been previously given to determinations of fact by administrative judges which need to be appealed.

5.         Whistleblower Rights:  The MSPB also has made a change with respect to
whistleblower rights.  Individuals filing Individual Right of Action (IRA) cases with the U.S. Office of Special Counsel (OSC), instead of direct appeals to the MSPB in connection with an adverse action appear to be effectively limited to only the litigating the whistleblower issue.  The effect of this provision, in 5 C.F.R. § 1209.2, will likely be to free agency counsel from having to defend the adverse action that was taken and their penalty analysis and to only deal with the reprisal issue in such an appeal. 

There are a number of other changes, but the ones above are the ones that I noted as most interesting in our representation of federal employees before the MSPB.  If a federal employee is in need of representation, they should contact an attorney familiar with these issues.  Our law firm, in the Metropolitan, Washington, D.C. area represents federal employees nationwide and can be contacted at (703) 668-0070 or at www.berrylegal.com to consult over these types of cases. 

 

MSPB Reverses Removal Where Federal Employee Was Not Provided Due Process

By John V. Berry, Esq., www.berrylegal.com

In an interesting case, the MSPB has reversed the removal of a federal employee that was not provided due process in responding to a proposed removal action.  The case before the Board was Alford v. DOD, 2012 MSPB 110 (Sept. 28, 2012). The case appeared to present many issues, but the key issue for purposes of due process involved the failure of the Agency to provide the federal employee the opportunity to provide an oral response prior to his removal. 

In particular, the Board found that the federal employee had submitted a request for an oral reply, but that the Agency had issued their decision removing the employee without providing the oral reply.  Federal agencies must be careful in removing employees without providing them their full due process rights.  The MSPB has been vigiliant, as of late, in ensuring that federal employees are provided with their full due process rights in these types of matters.

A copy of the decision is attached here. Download Alford Due Process  Please keep in mind if a federal employee is facing this type of action that they should consult with an attorney familiar with these issues.  Our firm can be contacted at www.berrylegal.com should a federal employee wish to consult over these types of issues. 

MSPB Proposes Changes to Governing Regulations

By John V. Berry, www.berrylegal.com

For the first time since 1979, the Merit Systems Protection Board (MSPB) has sought to amend their rules of practice contained within Title 5 of the U.S. Code of Federal Regulations (CFR).  The new proposed rules are available in the Federal Register at https://federalregister.gov/a/2012-13655.  The changes to the regulations governing practice before the MSPB are extensive and readers are invited to review them.  The MSPB has sought comments to these proposed regulations by July 23, 2012.

On first review, there appear to be a number of changes relating to timing issues in cases and some changes to the MSPB's discovery procedures.  There are a number of other changes as well.  Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com for legal representation before the MSPB. 

 

MSPB Reverses Removal Based on Due Process Argument

By John V. Berry, www.berrylegal.com

In an interesting new case, Jenkins, v. EPA, 2012 MSPB 70 (May 4, 2012), the
Merit Systems Protection Board (MSPB) reversed a removal decision by a federal agency because it had not provided due process to the federal employee involved. 

Background of Jenkins Due Process Case

In this case, the federal employee had been proposed for removal from her position with the EPA.  The Agency then removed the employee, allegedly relating to threats made and abusive language in the workplace.  The employee appealed to the MSPB, but an administrative judge had dismissed her claims, upholding the removal.  The employee then filed for review of the decision by the Board of the MSPB. 

The MSPB reviewed and reversed the administrative judge because the federal agency had denied the federal employee minimum due process of law.  In particular, the MSPB had found that the Agency had failed to give the employee with notice of an aggravating penalty factor used as a basis for discipline in her case, ruling that: “when an agency intends to rely on an aggravating factor as the basis for the imposition of a penalty, such factors should be included in the advance notice of [the] adverse action so that the employee will have a fair opportunity to respond to those factors before the deciding official.”  Jenkins, at 4.

What the Jenkins Decision Means for Federal Employees at the MSPB

One of the most important issues that will might result here is that administrative judges at the MSPB might now take more care in cases involving information used by an Agency in a disciplinary action which has not been provided to a federal employee prior to a decision being made on discipline. The Jenkins decision makes it clear that the Board believes that federal agencies, prior to making adverse action decisions, must first provide federal employees advance notice of significant information relating to proposed adverse actions.  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 these types of matters. 

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.  

Defending Federal Employees – The Critical Nature of the Douglas Factors

By John V. Berry, Esq., www.berrylegal.com

In our legal practice we defend federal employees in disciplinary and adverse actions.  From our experience in defending federal employees in disciplinary and adverse actions, one of the most critical issues involves the use of the Douglas factors in attempting to mitigate (reduce) a proposed disciplinary penalty in a case.  The Douglas factors are also referred to as mitigating factors.  They are used to argue that disciplinary charges for federal employees, even if true, should still result in a lower penalty than the one proposed. 

The Douglas factors are the result of the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). When we approach an appeal before the Merit Systems Protection Board (MSPB) for a client or in a case before a deciding official at the proposal stage it is important to set forth any and all mitigating factors that might be applicable to a federal employee’s case. Douglas factors can also be used as aggravating factors to justify the imposition of higher penalties. Often times, these factors can be confusing, so I have explained each of the 12 factors below:

THE 12 DOUGLAS FACTORS

(1) The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated.

Explanation:  This Douglas factor generally refers to how serious an allegation is and how it relates to a federal employee’s particular position.  For instance, an allegation of theft would be treated more seriously, under this Douglas factor, for an individual that encumbers a law enforcement position.  This factor also looks at whether an allegation is part of a pattern of similar conduct and whether or not the allegations relate to intentional actions as opposed to something that occurred as a result of a genuine mistake. Generally, this factor tends to be used more by a federal agency for
purposes of aggravating (or supporting) an enhanced disciplinary penalty. 

(2) The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position

Explanation:  This factor is not one of the more frequently used factors. It is more often used to attempt to raise a disciplinary penalty.  For example, a federal agency may attempt to consider the particular position that one holds, i.e. high level supervisor (or type of position - law enforcement) as an aggravating factor.

(3) The employee’s past disciplinary record

Explanation:  This factor is generally used for purposes of mitigation.  Typically, this Douglas factor is argued for the purposes of lessening a penalty.  For instance, if a federal employee has worked for the federal agency involved for 20 years, and has never received prior discipline during that time this can be used to attempt to reduce the proposed discipline.

(4) The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability

Explanation:  This factor is one of the most often used arguments in support of mitigation by a federal employee.  Typically, this factor is used by an employee to support a reduction in penalty based on their good record of service to their agency.  For example, in the disciplinary cases that we handle we might attempt to mitigate a disciplinary penalty by showing that an employee's years of service (especially if a long term employee), performance ratings, commendations / awards and letters from supervisors / co-workers support a reduction in a disciplinary penalty.

(5) The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s work ability to perform assigned duties

Explanation:  Federal agencies in serious disciplinary / adverse actions tend to use a blanket statement in the proposal notice claiming that they have lost confidence in a particular employee, without supporting the contention, to support the aggravation of a penalty.  I find that this Douglas factor can be very helpful for purposes of mitigation where an employee has continued to work successfully in their normal position, over an extended period of time, after the underlying incident has occurred.  The argument for mitigation here is that the federal employee continued to work in a critical position while the investigation was ongoing which supports the fact that the agency has not lost confidence (or trust) in the individual. 

(6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses

Explanation:  This Douglas factor tends to be argued by federal employees for mitigation and by proposing officials for aggravation of disciplinary penalties.  Often times, we find that we can point to inconsistencies in the penalties issued to other
federal employees versus a client.  For instance, in this type of situation we would argue that you cannot issue a light penalty for one person (ex. 10-day suspension) and propose removal for another based on similar allegations. 

(7) Consistency of the penalty with any applicable agency table of penalties

Explanation:  A federal agency may attempt to rate a proposed penalty at a certain level as a result of their interpretation of an agency’s table of penalties.  The table
of penalties is merely a chart with lists of individual offenses and ranges of penalties for such offenses.  That said, we find that it is important to actually make sure that a proposed disciplinary action has been listed appropriately under the chart; often times they are not and lead to more significant penalties.  As a result, we often argue that a particular allegation has not been correctly identified under the agency’s table of penalties.

(8) The notoriety of the offense or its impact upon the reputation of the agency

Explanation:  This factor generally is used by a federal agency to attempt to support the aggravation of a disciplinary penalty.  Most commonly this factor comes into play
when the underlying incident is reported in the media.  Generally, an agency will attempt to aggravate a disciplinary penalty the more that an incident has been publicized in the news in a negative manner. 

(9) The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question

Explanation:  This factor generally refers to the rules governing the underlying allegations as is used quite often in mitigation in our federal employment defense cases.  Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule.  Often times a federal employee that has been charged with a violation of agency rules has not been properly trained with respect to the rules or regulations that they have been charged with violating.   Therefore, in defense cases we attempt to illustrate the lack of notice as to the actual rules that have been allegedly violated by an employee, in addition to a lack of training on the issues that have been charged in a disciplinary action.  

(10) The potential for the employee’s rehabilitation

Explanation: While many federal agencies attempt to use this Douglas factor for purposes of aggravating a disciplinary penalty, we find that this factor tends to be good for purposes of mitigation.  For instance, we might use this factor to argue that a federal employee's good career record and the actions that they have taken during the investigation demonstrate that they are good candidates for rehabilitation and hence should receive a lower penalty (more common in proposed removal cases).  Often times, when a federal employee accepts responsibility for their actions in a case this can help mitigate a proposed disciplinary penalty.          

(11) Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter

Explanation:  This factor is generally referred to as a miscellaneous mitigation factor which can include many potential considerations.  It is a very broad mitigating factor.  We often use this Douglas factor to illustrate personality conflicts in issuing proposed discipline by the proposing official or harassment by others in the workplace which led to the proposed discipline against a federal employee.  Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty.

(12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others

Explanation:  This factor generally is used for purposes of mitigation of proposed disciplinary penalties.  We have argued, in cases for federal employees, that a different penalty (other than the one proposed) would be more appropriate and still serve the same disciplinary purpose. Sometimes, we have argued that instead of removing a federal employee that there are other effective resolutions to a disciplinary action.  For instance, where an individual has been placed in an unpaid suspension for several months while an investigation was ongoing, we would argue that any future disciplinary penalty consider the prior suspension and loss of pay suffered by the employee during the time at issue for purposes of mitigation.  Sometimes this factor can also lead to settlement negotiations over the ultimate penalty issued in a case where an employer is willing to consider alternative discipline. 

CONCLUSION

When responding to a proposed disciplinary or adverse action, or an appeal to the MSPB, it is important to put forth all of the applicable Douglas factors to reduce potential disciplinary actions.  Douglas factor issues vary greatly from case to case and federal employees should retain an attorney knowledgeable about these issues prior to responding to a proposed disciplinary action or filing an appeal with the MSPB. 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.     

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.