Information Considered Improperly

In two cases involving related issues, the Merit Systems Protections Board recently held that, in adverse action cases, the deciding officials' consideration of information to enhance the penalties was improper where the employees were not put on notice of the consideration of new evidence. The administrative judges' decisions upholding the removals were reversed.

The MSPB's decisions in Thomas v. U.S. Postal Service, 2011 MSPB 62 (June 14, 2011), and Gray v. Department of Defense, 2011 MSPB 64 (June 17, 2011), both involved deciding officials improperly considering new and material information when deciding whether to impose an enhanced penalty without giving the appellant notice that such information was being considered. The U.S. Court of Appeals for the Federal Circuit has recently held that a due process violation may occur if a deciding official considers new and material information when determining whether to impose an enhanced penalty without informing an appellant that such information was considered. Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011).

In the Thomas case, the agency deciding official reviewed statements from two employees but did not inform Thomas in his notice of proposed action that the statements were considered. The MSPB administrative judge found that the agency did not commit harmful error by failing to provide notice to Thomas but did not fully address the potential due process violation.

Similarly, Gray was removed after the deciding official considered advice sought from a personnel security specialist on whether the specialist believed Gray was suitable to occupy his position, but failed to inform Gray of such discussions in the notice of proposed action. At his MSPB hearing, Gray argued that the deciding official violated his due process rights. However, the administrative judge found that Gray failed to prove a violation.

In both appeals to the Board, the Board found that further inquiries into whether the respective agencies committed due process violations or harmful errors were necessary. The Board remanded Thomas's case and directed the administrative judge consider whether the deciding official reviewed "cumulative" information or new information, whether Thomas knew of the deciding official's error and had a chance to respond to it, and whether the deciding official's communications were of the type likely to result in undue pressure to rule in a particular manner. If the information was "new and material" rather than cumulative, Thomas's removal would have to be reversed due to the due process violation.

The Board reversed Gray's case after considering the above factors and finding that the agency violated the appellant's due process rights because the information was new and material. The Board ordered the agency to cancel the removal action and reinstate Gray.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to https://www.passmanandkaplan.com.