By William Wiley, February 15, 2017

In science, we say that if it only happened once, it could be an accident; if it has happened twice, perhaps it’s a coincidence; but if it has happened three times, we’re onto a trend. I’m afraid we’ve come to a point in MSPB mitigation law that in our training programs here at FELTG, we are going to declare a sad trend. Here’s the background.

There have been three major guiding principles in the world of charge-framing that we’ve taught for years, and they have been successful in many removals involving misconduct:

  1. Affirm all charges, get penalty deference – When all of the agency’s charges are sustained, but some of the underlying specifications are not sustained, the agency’s penalty determination is entitled to deference.  Payne v. USPS, 72 MSPR 646 (1996). Agencies love penalty deference. That means that a Board member can look at an agency’s removal penalty, conclude that if she were the deciding official, she would not have fired the guy, but still uphold the removal as within the bounds of reasonableness, thereby deferring to the agency’s decision. Without penalty deference, a Board member is more empowered and likely to select her own “reasonable” penalty.
  2. Affirm a single specification, affirm the charge – Where more than one event or factual specification supports a single charge, proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge.  Burroughs v. Army, 918 F.2d 170 (Fed. Cir. 1990), Hicks v. Treasury, 62 MSPR 71 (1994).
  3. Determine a penalty even if all charges are not affirmed – When the Board sustains fewer than all of the agency’s charges, the Board may mitigate the agency’s penalty to the maximum reasonable penalty so long as the agency has not indicated in either its final decision or in proceedings before the Board that it desires that a lesser penalty not be imposed on fewer charges.  Lachance v. Devall, 178 F.3d 1246 (Fed. Cir. 1999).

Applying these three principles to the drafting of discipline documents, FELTG (along with others with expertise in this field) has been recommending that agencies:

  • Draft as few charges as possible, thereby reducing the chance that one of them will be not affirmed, thereby losing penalty deference.
  • List a bunch of specifications because you only need one to support the charge. If some are not affirmed on appeal, well, so what.
  • Have the decision letter say something like, “Although I have affirmed all three charges, any one of the charges, standing alone, would warrant your removal.” That Lachance-v-Devall-principle covers you on appeal if a charge or two is not affirmed.

In general, we continue to believe that this approach significantly reduces the agency’s chances of having its removal mitigated to a suspension. Unfortunately, we now must acknowledge that the bottom line is sometimes different from where these principles would otherwise take us. For example, in a decision last year in which the agency brought three charges, lost 10 of the 20 specifications, but managed to have at least one specification affirmed for each charge, the Board still mitigated the removal and put the employee back to work.  Brown v. DHS, SF-0752-14-0816-I-1 (2016)(NP). In a case this year, the agency proved two of three charges with four of eight specifications being affirmed. With a charge lost, we can expect mitigation. However, to his credit, the deciding official said he would have removed the employee even without the failed charge. We should see some Lachance-v-Devall deference because all the charges that matter were affirmed on appeal. Well, that didn’t happen. In spite of the deciding official’s statement, the Board mitigated the removal and returned the employee to duty. Leonard v. DVA, CH-0752-14-0301-I-3 (2017)(NP).

So where does this leave us? I’m afraid it leaves us with the conclusion that the Board members sometimes are going to decide the proper penalty, regardless of precedence dating back to Douglas that says it is the agency’s officials who should be selecting the penalty, not the lawyers at MSPB.

Having worked inside the Board for nearly a decade, I fully understand the temptation to step in and decide that a removal is too severe. It’s a lot easier to have sympathy when you are removed from the front lines where these decisions are being made. It’s hard to sit in your big Presidentially-Appointed Senate-Confirmed office and concede that you’re really not in the best position to determine a penalty. But that’s what Douglas says you’ll do.

As a real-life example of how misplaced it is for the Board to determine a penalty, look to Brown. There, the agency removed the employee from her supervisory position. In mitigation, the Board said she should have been demoted to a lower-graded position instead WITHOUT ANY EVIDENCE WHATSOEVER AS TO WHETHER THE AGENCY HAD NEED FOR A LOWER-GRADED POSITION.

Here’s an option the Board should try in cases like these, where a number of specifications and/or charges start to fall out on appeal. Once the judge reaches a conclusion that removal might not be warranted after considering all the evidence, the judge could remand the case to the agency with an order that says something like this:

The agency has brought three charges in this case. Each charge is supported by three specifications. It is my determination that Charge One fails in its entirety, Specification C of Charge Two fails, and Specification B of Charge Three fails. Based on the remaining affirmed charges and specifications, the agency has seven days from today to reconsider its penalty determination and submit argument in support of its new determination. Once the agency has reached a new penalty determination, the appellant will have seven days to respond. As the record is closed, I will take no further evidence.

There’s a new administration in town. How about we try out something new before we lose our civil service to history? Wiley@FELTG.com

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