By John V. Berry, Esq., www.berrylegal.com
In our representation of federal employees before the Merit Systems Protection Board (MSPB) one of the major issues that we come across involves whether or not a federal employee has been provided with due process in the processing of a disciplinary or adverse action. This is very important because when due process has not been properly provided to a federal employee, a federal agency’s final decision can be potentially reversed at the MSPB.
Federal Employee’s Right to Due Process
Generally, before a federal employee can be disciplined for alleged misconduct or performance deficiencies, they are entitled to due process of law. The core of due process for disciplinary actions consists of (1) notice of the misconduct or performance issues; and (2) the opportunity to respond to these issues. Ward v. U.S. Postal Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011). A federal employee must be given a meaningful opportunity to invoke the discretion of the decision maker before a personnel action is finalized. Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 546 (1985).
Due Process Right to Information Relied Upon by a Federal Agency
A federal agency, if asked by a federal employee, must provide copies of all information relied upon in the processing of a disciplinary action in order to prepare for their response to the proposed action. Many federal agencies provide this type of information as a matter of course when they issue a proposed disciplinary action. However, many do not. This is why it is usually very important, prior to the oral and/or written response to the proposed action for a federal employee to formally request all of the materials relied upon by the agency in proposing the action. If a federal employee does not do so, then it can be hard to determine exactly what information that the deciding official considered in issuing a final decision.
If a federal agency considers important information in a case that is not provided to a federal employee this fact can be the basis for possible reversal of the action at the MSPB. New information, not provided to a federal employee is often called “ex parte communications.” The U.S. Court of Appeals for the Federal Circuit has held that ex parte communications that introduce new and material information about a federal employee’s case to a deciding official constitute a due process violation. Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999).
Due Process Necessary for Douglas Factors
The U.S. Court of Appeals for the Federal Circuit, in Ward v. USPS, 634 F.3d 1274 (Fed. Cir. 2011) held that information not provided to an employee regarding penalty determinations (under the Douglas factors) were also subject to due process:
“Ex parte communications that introduce new and material information whether material to the merits of the underlying charge or material to the penalty to be imposed, violate due process. There is no constitutionally relevant distinction between ex parte communications relating to the underlying charge and those relating to the penalty.”
This type of issue can come into play where the federal agency issues a decision on a proposed disciplinary action, citing an increased disciplinary penalty based upon information that was not provided to a federal employee prior to the oral and written response stages. For example, we have seen cases where a federal employee was given a more significant disciplinary penalty for having a past disciplinary record which was not mentioned in the proposed action. This can be reversible error.
Our law firm advises and represents federal employees in MSPB appeals. We can beached by telephone at (703) 668-0070 or www.berrylegal.com for addition information or to set up a consultation.