By Deborah J. Hopkins, January 29, 2024
A FELTG reader recently asked whether a newly issued Federal Circuit decision overturned MSPB’s comparator analysis set out in Singh v. USPS, 2022 MSPB 15 (May 31, 2022).
For those unfamiliar with the long and tumultuous history of the Douglas factor on comparator employees, penalty consistency, and the impact of Singh, please read this first. To briefly summarize: Singh provides a fairly narrow comparator analysis that employees generally be from the same work unit, work under the same supervisor, and engage in the same or similar offenses.
Torres v. DHS, No. 2022-2003 (Fed. Cir. Dec. 20, 2023) remanded an arbitrator’s decision on an employee’s removal. The arbitrator’s analysis of Douglas factors 6 (comparator employees) and 10 (potential for rehabilitation) required further consideration, the Fed Circuit ruled. It’s best you read the case yourself. But if you don’t have time, here’s a snapshot with an emphasis on the court’s view of the Douglas factor 6 analysis:
- The agency removed the appellant, an ICE deportation officer, for Falsification of Certified Records and Absence Without Leave.
- The appellant invoked arbitration. The arbitrator upheld the removal in May 2022, two weeks before Singh was issued.
- The agency identified no comparators outside the work unit in its Douglas factors analysis.
- The arbitrator found the lack of comparators too limited, so he chose to consider four comparators identified by the appellant. He found there was not “sufficient similarity between the nature of the misconduct and other factors to establish disparate treatment.” Id. at 5.
- The Federal Circuit disagreed with the arbitrator, finding the four comparators appropriate because they were all law enforcement officers who made misrepresentations to ICE.
- The court’s reasoning: “Here, Douglas factors 6 and 10 are significant because they highlight similar comparator discipline cases and examine whether Mr. Torres could be rehabilitated to return to his duties despite possibly being Giglio-impaired.” Id. at 8.
- Because the arbitrator did not consider certain issues (such as possible Giglio impairment), the case was remanded for a more thorough Douglas analysis, specifically on factors 6 and 10.
A few FELTG readers wondered if the emphasis on Douglas factor 6 effectively overruled Singh and its narrow comparator analysis, especially because the arbitrator’s award included a statement about the need for agency-wide comparators. Plus, the agency’s brief did not mention Singh, despite being filed nearly six months after the Singh decision.
After a few reads and some internal discussions, it’s FELTG’s perspective that Torres and Singh can coexist.
First of all, Torres doesn’t mention Singh at all. Generally, if the Federal Circuit overrules MSPB, it will state so explicitly. So, take three deep breaths, and check out what two FELTG instructors specifically said about Torres and its impact on Singh.
From FELTG founder Bill Wiley:
- In Torres, the Federal Circuit said, “the arbitrator broadened his examination by considering the four comparator discipline cases presented by Mr. Torres” without any discussion as to whether those four cases comport with all the Singh comparator factors.
- Torres happens to make a finding relevant to Singh’s same-or-similar requirement when it notes that “each of the comparator discipline cases involved a law enforcement officer’s misrepresentations to ICE.”
- However, it makes no finding regarding the other Singh requirements including same chain of command, same work unit, and knowingly differential treatment. This doesn’t mean the Singh requirements are not satisfied — and it doesn’t mean that they are.
- Of some concern: Torres, like the Terrible Trilogy (Woebcke–Lewis–Villada), considers Douglas factor 6 more important than to Douglas factor 1 — nature and seriousness of the offense.
- There is a lot of subjectivity in determining just how to weigh Douglas factor 6 relative to Douglas factor 1, so I don’t see Torres actually changing any penalty determination principles.
From instructor Bob Woods:
- The arbitrator considered comparators beyond the Deciding Official’s authority. That was appropriate given the decision was pre-Singh. It might have even been OK under Singh. On remand, the agency can argue Singh limits a review of comparators.
- However, I think the Board would entertain the appellant’s comparison. They probably wouldn’t require broad discovery to find comparators beyond the DO’s authority, but I don’t think they would say the DO could ignore similar cases presented by the appellant. In fact, in Singh, they were OK with the fact that the agency provided information about similar cases beyond the authority of the DO.
That’s our take, FELTG readers. While it’s not legal advice for your agency, it’s the position we’ve arrived at. We’ll continue to monitor the MSPB and the Federal Circuit to see if any additional information comes out.
We’ll also discuss this in detail during MSPB Law Week April 15-19. In addition, if your agency has thoughts or perspective on Torres, please send it along; we’d love to get your take. [email protected]