News from the Federal Circuit: Although the Merit Systems Protection Board (MSPB) continues without quorum, its chief reviewing court, the U.S. Court of Appeals for the Federal Circuit, has continued deciding federal sector adverse action cases. Recently, the Federal Circuit issued two new decisions of interest:
News from Congress: On June 23, 2017, the President signed into law Pub.L. 115-41. The new statute reduces civil service protections for employees of the Department of Veterans Affairs (DVA).
News from the Federal Circuit: On May 9, 2017, the U.S. Court of Appeals for the Federal Circuit issued its decision in Helman v. Dept. of Veterans Affairs, No. 2015-3086. The Court struck down part of the statute for expedited removals of Department of Veterans Affairs (DVA) Senior Executive Service (SES) employees as unconstitutional, but left much of the statute in place.
Developments at the MSPB: On June 13, 2014, the Merit Systems Protection Board (MSPB) issued a nonprecedential decision in Halfacre v. Dept.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.
Developments at the OSC: On August 11, 2011, the U.S. Office of Special Counsel (OSC) announced another case where OSC intervention resulted in a stay of an adverse action against an employee. OSC's action in the matter not only ultimately resulted in reversal of the adverse action for the employer, but further resulted in the employing agency--the U.S. Department of Energy (DOE)--changing its suspension policy across the board.
Developments at the MSPB: The MSPB continues its assault on due process violations by agencies when taking adverse personnel decisions against federal government employees. In this latest example, a poorly written complaint by the Office of Special Counsel (OSC) violated the due process rights of government employee Jeffrey E. Smith by failing to place Mr. Smith on notice of his alleged violations, the MSPB recently held. OSC's complaint alleged that Mr. Smith violated the Hatch Act for engaging in political activity while on duty and while in a government building on a government computer. However, OSC's complaint lacked necessary particularity and supporting facts. The complaint failed to properly identify referenced emails and documents Mr. Smith allegedly drafted or edited, and it did not contain any attachments or copies of materials which constituted the bases for its charges. The MSPB made clear that outlining each specification of a complaint "is precisely what OSC is required to do," and that OSC's failure to do so prevented Mr. Smith from defending himself against OSC's allegations and did not inform the judge as to what must be adjudicated. The MSPB accepted an amended OSC complaint as a new complaint so that Mr. Smith may exercise his full procedural rights if the new complaint complies with constitutional and regulatory requirements. Special Counsel v. Smith, 2011 MSPB 69 (July 12, 2011).
Developments at the MSPB: This case represents another case from the MSPB where an employee's removal was reversed because the agency considered detrimental information in its decision-making process without sharing that information with the employee. Because the employee was not given the opportunity to rebut this information, the agency violated the employee's due process rights which requires a reversal of the employee's termination.
The MSPB held in two cases, involving related issues, that a deciding official's consideration of information to enhance penalties violated an employee's due process rights where the employee was not put on notice of the consideration of new evidence. Both cases involved a deciding official improperly considering new and material information, but failing to inform the employee in the notice of proposed action that such information was being considered. The Administrative Judge in Thomas did not fully address the potential due process violation, while the Administrative Judge in Gray found that Mr. Gray failed to prove a violation of his due process rights. The Board reversed Gray after finding that the information the deciding official considered was "new and material," and remanded Thomas for further inquiries. Thomas v. U.S. Postal Service, 2011 MSPB 62 (June 14, 2011) and Gray v. Department of Defense, 2011 MSPB 64 (June 17, 2011).