Have You Reviewed These Charges Lately? The Board Just Did.
By Deborah J. Hopkins, December 2, 2025
You may have missed it, but during the 43-day shutdown, the Senate confirmed James Woodruff II as a Member of the Merit Systems Protection Board (MSPB), which means the Board has a quorum for the first time since early April. Woodruff joins Vice Chairman/Acting Chairman Henry Kerner, while the third seat remains vacant, and former Chairman Cathy Harris’ appeal on her removal is pending in Federal court.
Now that the shutdown is over, the Board is again operational. And…the new cases are coming out! (I’ll admit it: I am a self-professed MSPB Nerd® and I love reading new cases with my morning coffee.)
Kerner and Woodruff have issued one narrow precedential opinion, but a new NP case involving the removal of a GS-13 Deputy United States Marshal based on four charges caught my attention. Maisonet v. DOJ, AT-0752-24-0462-I-1 (Nov. 19, 2025)(NP). The Board’s review and discussion of the charges is worth a read, as it provides insight into how these Members view Board precedent – especially enlightening after a new Member is sworn in.
Charge 1: Misuse of Position
The conduct: The appellant accessed two separate restricted law enforcement systems to query an individual to further his own private interests related to a personal relationship.
Proof required to sustain the charge: To prove a charge of misuse of position, an agency must prove that the appellant misused his government position, resulting in private gain (the gain does not have to be financial). See Gardner v. VA, 123 M.S.P.R. 647, ¶ 11 (2016), clarified by Pridgen v. OMB, 2022 MSPB 31, ¶¶ 23-24. To prove its charge, the agency must show that the appellant actually received private gain, not just the appearance of private gain. See Mann v. HHS, 78 M.S.P.R. 1, 8 (1998).
Charge 2: Conduct Unbecoming a Deputy U. S. Marshal
The conduct: The appellant yelled at a superior, spoke unprofessionally to another superior, was disruptive during an office conversation, and was rude to a supervisor when she attempted to discuss the his performance review with him.
Proof required to sustain the charge: To prove the charge of conduct unbecoming, the agency must show that the charged conduct occurred and that the conduct was improper, unsuitable, or detracted from the appellant’s character or reputation. Miles v. Army, 55 M.S.P.R. 633, 637 (1992).
Charge 3: Failure to follow instructions
The conduct: The appellant failed to follow instructions given to him in a written memorandum when he attended a medical appointment while on administrative leave, and when he traveled to Honduras the next day while still on administrative leave.
Proof required to sustain the charge: To prove a charge of failure to follow instructions, the agency must show that (1) a proper instruction was given, and (2) the appellant failed to follow the policy or the instructions. The agency is not required to show that the failure to follow was intentional. Powell v. USPS, 122 M.S.P.R. 60, ¶ 5 (2014).
Charge 4: Failure to follow policy
The conduct: The appellant failed to follow USMS policy when he did not report his foreign travel, and failed to follow DOJ policy when he used his personal credit card to pay for lodging while on official travel.
Proof required to sustain the charge: To prove a charge of failure to follow policy or procedure, an agency must show that a proper policy or procedure existed and that the employee failed to follow it, without regard to whether the failure was intentional or unintentional. See, e.g., Hamilton v. USPS, 71 M.S.P.R. 547, 555-57 (1996).
In this case, the Board agreed with the AJ and upheld the removal, finding the agency proved all four charges (including most specifications), proved nexus, and that the penalty was reasonable. In other words, their decision perfectly aligned with over four decades of Board precedent.
No matter how long you’ve been doing this work, it’s always worth a revisit to see if the Board has changed anything in the way it interprets charges; sometimes they can surprise you (for the old-timers…remember Boo v. DHS from 2014?). [email protected]
Related training
- UnCivil Servant: Holding Employees Accountable for Performance and Conduct, February 11-12, 2026
- MSPB Law Week, April 20-24, 2026
The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.
