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News from the Federal Circuit: New Adverse Action Decisions

News from the Federal Circuit: Although the Merit Systems Protection Board (MSPB) is currently shut down and without quorum, its chief reviewing court, the U.S. Court of Appeals for the Federal Circuit, has continued deciding federal sector adverse action cases.  Federal Circuit decisions of interest issued since the shutdown began include the following:

  • Hansen v. Dept. of Homeland Security, No. 2017-2584 (December 28, 2018).  Mr. Hansen was removed for a positive drug test, which Mr. Hansen alleged was caused by eating a brownie (unbeknownst to him, marijuana-laced) at a barbecue.  Mr. Hansen's chief argument on appeal was that the agency's burden of proof should include the burden of disproving his claim of inadvertence.   The Court upheld the removal.  The opinion noted that not all adverse action charges contain an intent element, but that lack of intent is still important to the issues of 'nexus' and reasonableness of the penalty in many non-intent cases.  The Court found that, although the agency has the overall burden of proof in an adverse action, the appellant bears the burden of presenting rebuttal evidence in order to show inadvertence.
  • Jenkins v. MSPB, No. 2017-2193 (January 2, 2019).  A split panel rejected Mr. Jenkins' involuntary retirement claim.  Mr. Jenkins notified the agency of his intent to retire after receiving a proposed removal.  The agency issued a decision removing Mr. Jenkins effective the day after his scheduled retirement date, then unilaterally issued a second notice cancelling the removal if Mr. Jenkins retired.  Judge Wallach, for the majority, found no removal jurisdiction because the agency had rescinded the removal, even though Mr. Jenkins retired after receiving a removal decision.  Judge Reyna, in dissent, accused the majority of giving "federal agencies a playbook on how to structure the removal of federal employees to preclude judicial review of removal decisions" through crafting "a conditional offer of rescission in exchange for voluntary retirement."  Judge Reyna further noted that the majority ignored Congress' intent in passing 5 U.S.C. § 7701(j), which was designed to "end the situation which forced federal employees to choose between appealing a removal action and accepting retirement benefits." 
  • Do v. Dept. of Housing and Urban Development, No. 2018-1147 (January 14, 2019).  The Court reversed the MSPB's decision upholding Ms. Do's demotion/suspension, finding that the MSPB upheld the discipline on grounds different from those relied upon by the agency below.  In upholding the discipline on grounds which did not appear in the agency's proposal or decision notices, the MSPB committed a due process violation, requiring reversal.   

If you are a federal employee who needs legal representation in an adverse action proceeding, consider requesting an initial consultation with one of Passman & Kaplan's attorneys.

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