By William Wiley, May 3, 2021

President Biden recently nominated Cathy Harris as Chair of the Merit Systems Protection Board, and hopefully soon he will nominate two other individuals who will provide us with a full Board. And you can bet that on behalf of The Nation, good old FELTG will have some recommendations for the new leadership to consider.

One of them is a cure for a complaint we’ve long expressed in this newsletter over the years, and which we will re-surface every chance we get. We were reminded of the problem in a court decision earlier this year, Lowe v. Navy, Fed. Cir. No. 2020-1564 (Jan. 11, 2021). That non-precedential decision contained nothing legally spectacular within itself, and resulted in the affirmation of the administrative judge’s decision in Lowe v. Navy, No. DC-0752-19-0053-I-2, 2019 MSPB LEXIS 4415 (Dec. 2, 2019). The problem that we hope the new Board leadership will correct is found in the AJ’s decision.

The Navy fired Mr. Lowe from the position of a GS-13 supervisor based on two charges. Finding one of the charges not proven, the AJ mitigated the removal to a demotion to a non-supervisory GS-12. And that’s what the new Board leadership should stop AJs from doing — mitigating removals to demotions. Here’s why:

We know nothing about the specifics of the work situation in which this appellant was employed. Theoretically, however, it could be a small organization, as would be the case in which any individual is fired from government. There is nothing in the record to show that when ordering the mitigation of the removal to a demotion, the AJ gave any consideration to the needs of the agency, its organization, and the availability of work for the appellant to perform once he is reinstated to a lower grade. It is conceivable that there actually is no GS-12 work available for the restored employee to perform in the organization from which he was removed.

To comply with the AJ’s mitigation order, the agency has to either find a vacant position elsewhere within another organization within the agency or create work that doesn’t actually need to be performed at the GS-12 level in the original organization. Perhaps there is an available GS-12 position within the agency, but at a location hundreds of miles away, thereby requiring that the employee be physically moved, perhaps against his will. Or, perhaps worst of all, assign the restored appellant to do lower-graded work while being paid at the GS-12 level, thereby violating all the rules of position classification and good government common sense.

Sure, the Navy is a big agency potentially with lots of available positions or work to be done that is not yet organized into a position. But what if the employing agency had been a much smaller one with limited work to be done? What if the appellant in this case had been located in a remote Navy facility, thereby necessitating an agency-funded PCS move to another work location to find GS-12 work? A board AJ is in no position to assess these organizational factors when ordering a demotion in lieu of a removal and should not mitigate a removal to a lower-graded position.

So, what should the new Board leadership direct AJs to do in a situation in which the judge decides, for whatever reasons, that some penalty is warranted, but the appealed removal penalty is too severe and demotion might be more reasonable? Ah, fortunately for humanity, we here at FELTG have a few options to recommend that the AJ can do:

1. Set aside the removal and restore the appellant to his old position. The agency has said, “This guy deserves to be fired because of the following reasons.” When it does not prove those reasons, then it loses. It would then be left up to the agency, upon restoration, to decide if a new penalty was warranted. If that new penalty was within the Board’s jurisdiction, the employee could file a new appeal. That would parallel what is done when a criminal prosecutor brings a charge of murder, but does not prove that the killing was premeditated or otherwise fully comports with the legal definition of murder. The jury doesn’t get to step in and rule that the individual should instead be found guilty of some separate charge that was not brought.

2. Set aside the removal and remand to the agency to reconsider the penalty in light of the AJ’s conclusions. The AJ could set a time limit for the agency to act and retain jurisdiction to review any new proposed disciplinary action to see if it is within the bounds of reasonableness. Upon finding that it is (or remanding again until it is), the judge would issue a decision that would be appealable to the Board, as is usual.

3. Set aside the removal and remand to the agency with specific options. The AJ’s initial decision could conclude with language like this, “Having found that removal exceeds the bounds of reasonableness, I hereby direct the agency to place the appellant into a non-supervisory GS-12 position within the same geographic area now employed, if one is available. If such a position is not available, then I find that the maximum penalty for the sustained charge is an X-day suspension.” That way, the agency gets to consider its organizational needs and work availability when deciding which penalty makes the most sense.

Position management decisions should not be made by Board judges. Reinstated employees should not have to be reassigned geographically to comply with an AJ’s reversal of a removal. The new Board members should develop another option for AJs to implement when they determine that the removal of a supervisor is beyond a reasonable penalty, other than demotion. Wiley@FELTG.com

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