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Developments at the MSPB: Due Process Denial Leads to Reinstatement

Developments at the MSPB: On June 13, 2014, the Merit Systems Protection Board (MSPB) issued a nonprecedential decision in Halfacre v. Dept. of Homeland Security, MSPB Docket No. DC-0752-12-0626-I-1. Reversing the administrative judge's decision below, the MSPB found that Ms. Halfacre was denied Constitutional due process in her removal, rendering the removal fatally legally defective. Accordingly, the MSPB reversed the removal of Ms. Halfacre and reinstated her to duty with back pay.

In 2012, Ms. Halfacre received a proposed removal on charges of alleged lack of candor and alleged misuse of government equipment. The proposed removal came after an agency internal investigation. During this investigation, Ms. Halfacre and another witness provided similar affidavits on certain incidents which were being investigated. The deciding official for the proposed removal testified at hearing that she considered this similarity in statements to be an aggravating factor in the case, as she considered the similarity to be evidence that Ms. Halfacre and the other witness had coordinated their testimony in an attempt to deliberately mislead the agency. However, the deciding official did not notify Ms. Halfacre that she was taking this consideration into account, and it was not raised in the proposed removal, and so Ms Halfacre did not have a chance to respond to this concern at the agency level. The Agency removed Ms. Halfacre, and the MSPB's administrative judge upheld the removal. Ms. Halfacre then filed a petition for review with the full Board.

On appeal, the MSPB unanimously reversed the removal decision. Under clear precedent from the MSPB and its chief reviewing court, the Court of Appeals for the Federal Circuit, federal employees are entitled to notice of the charges against them (including all aggravating factors) and a chance to respond before any adverse action is implemented--a right which rises to the level of 5th Amendment Constitutional due process. The MSPB found that the agency's failure to notify Ms. Halfacre of this undisclosed aggravating factor and failure to give her the chance to respond to the issue rendered her removal legally flawed, and thus ordered it reversed with full back pay.

Ms. Halfacre was represented by Passman & Kaplan Founding Principal Joseph V. Kaplan and Passman & Kaplan Senior Associate Adria S. Zeldin.

If you are a current federal employee who has received a proposed adverse action, and would like to discuss your rights, please contact the law firm of Passman & Kaplan, P.C. to request a consultation.

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