Passman & Kaplan Wins Employee Reinstatement; Removal Reversed for Due Process Violation

On June 13, 2014, the Merit Systems Protection Board (MSPB) issued a nonprecedential decision in Halfacre v. Dept.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. 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 an undisclosed aggravating factor and failure to give her the chance to respond to the issue rendered her removal legally flawed, and thus ordered the removal reversed with full back pay. Ms. Halfacre was represented by & Founding Principal Joseph V. and & Senior Associate Adria S. Zeldin.