A Refinement in the Due Process Dilemma

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By William Wiley

By now, we all know the problem. To satisfy the Constitutional mandate for due process, the Deciding Official in a proposed removal should not rely on anything not in the proposal notice or the employee’s response to the proposal. Violate due process, and the agency automatically loses the appeal. There’s no concept of “Was there any harm?” when it comes to evaluating a due process violation, as there would be in other situations in which the agency makes an error.

As issues before MSPB go, this one has evolved to be particularly onerous. It’s very easy for a Deciding Official (DO) to unintentionally rely on something not before the employee in making a decision. DOs are smart people and they know lots of stuff. It’s up to us practitioners to coach them seriously about relying only on the limited information provided in the proposal and the response.

In my practice representing agencies, I’ve become exceedingly gun shy about the DO relying on ANYTHING not known to the employee. In most of the actions in which I work with agencies these days, the DO goes back to the employee at least once during the notice period either asking for more information or providing the employee new information that the DO has acquired, out of fear that there might be some tiny bit of fact that the Board on review finds to be a due process violation. I’ve half-joked (but only half) that I’m thinking about having the DO send a draft decision letter to the employee for comment prior to issuing the darned thing. That way, the chances would be greatly reduced that she would be relying on some fact that accidentally had not been made known to the employee prior to the final decision being issued. I know, sounds silly, but I’d rather be silly than reversed. Here’s the rule:

When an agency intends to rely on aggravating factors as the basis for imposing a penalty, such factors should be included in the advance notice of the adverse action so that the employee will have a fair opportunity to respond to those factors before the deciding official. Lopes v. Navy, 116 MSPR 470 (2011). If an employee has not been given notice of an aggravating factor supporting an enhanced penalty, an ex parte communication with the deciding official regarding such a factor may constitute a constitutional due process violation because it potentially deprives the employee of notice of all the evidence being used against him and the opportunity to respond to it. Ward, 634 F.3d at 1280; Lopes, 116 MSPR  470, ¶ 6.

Sometimes an employee will raise an issue or make a statement in his oral response that the DO wants to rely upon as an aggravating factor. I’ve wondered, given this era of special sensitivity to due process, whether the DO is safest to tell the employee that she plans to rely on that information, or how she is characterizing that information, and allowing the employee to respond to that prior to making a decision. After all, it’s entirely possible that a DO might misunderstand an employee’s response somehow and thereby rely on an incorrect understanding of what the employee actually was saying.

Well, the good news for agencies is that the DO does NOT have to tell the employee how she is considering the employee’s response. In a recent case, when the DO considered the employee’s response, she drew the conclusion that the employee was demonstrating a lack of remorse. On appeal, the employee claimed that because he was not informed and allowed to respond to the DO’s conclusion that he lacked rehabilitation potential, his due process rights had been violated.

The Board was clear in rejecting this argument. It reasoned that the agency could not have notified the employee that it would consider the lack of remorse in her response because the response postdated the proposal notice. Regulations requires that the DO consider BOTH the proposal and the RESPONSE to the proposal: “In arriving at its decision, the agency will consider only the reasons specified in the notice of proposed action and any answer…” 5 CFR 752.404(g)(1).

The Board members went out of their way to correct the judge’s finding that there was no due process violation because the DO testified she afforded little weight to the lack of rehabilitation potential. “Little weight” is the wrong principle. The correct principle is that the DO can consider the response (without violating due process) without notifying the employee of the conclusions drawn by the DO subsequent to the response. Nunnery v. Agriculture, DA-0752-15-0378-I-1 (June 9, 2016)(NP)

Frankly, this could have gone the other way, with MSPB requiring that the employee be informed of and allowed to respond to any new conclusions drawn by the DO. Fortunately, the Board came down on the side of efficiency and fairness. DOs can now draw their own conclusions based on the facts before them. Because of this decision, we are tweaking the FELTG approach to decision letters a bit. Previously, we have taught that the best decision letter is the decision letter that simply affirms the proposal without any elaboration by the DO. There’s still nothing wrong with that, and simple affirmance is still the easiest-to-defend approach. However, in a case in which the DO feels compelled to add something to the Proposing Official’s analysis, as long as she adds opinion only based on existing facts and not new facts, we think it’s safe to let it go. Wiley@FELTG.com

You’re Still Making the Same Stupid Mistakes

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By William Wiley

Twice a year here at FELTG, we present an audio conference that we bill as an update on the law. Starting this fall in our next offering, we’re going to add a new twist. We’re going to highlight not only any tweaks to the existing law, but also call out those agencies that continue to make stupid mistakes, causing them to lose charges and cases that should not have been lost.

That’s right. No more Mister Nice Guy. After 15 years of trying to teach agency representatives how to win cases, protect employee rights, and save us taxpayers a bucket-load of money when you screw up, we’re going to tell it like it is. Yes, you lose cases sometimes because the members at  MSPB get a little screwy and try to create foolish new law (e.g., the comparator employee Terrible Trilogy, Miller reassignment only if it makes the employee happy, prior discipline as progressive discipline only for the same category of misconduct). And sometimes you lose cases because the judge weights your evidence more lightly than you thought warranted. But do you know the Number One reason agencies lose cases? No, you don’t, because you haven’t read all the Board’s decisions.

Fortunately, we have here at FELTG. And the Number One Reason agency removals are set aside on appeal is … (drum roll, please) … practitioner error. That’s right. Some agency employee, attorney or Human Resources specialist, did something wrong. And we are TIRED OF IT. We’ve been out here for 15 years, a dozen times a year or more, telling you agency practitioners how to win cases. And some of you still don’t get it. Federal employment law is our craft, for goodness sakes. If you claim to be one of us, then you must properly and consistently practice our craft. And waaaaaaay to many agencies are relying on practitioners who don’t know this work, to do this work.

Let’s take just one topic: charging. Our FELTG colleague, author, and Instructor Emeritus Renn Fowler highlighted this issue all the way back in the mid-90s. MSPB and the Federal Circuit Court of Appeals are very fussy about the way an agency frames a charge. Something about Constitutional due process and the Magna Carta providing inalienable rights to federal employees. So for at least 20 years, those of us who teach employment law to federal agencies have been pounding away at the critical nature of the drafting of a charge in a proposal letter. By now, federal agencies with even a modicum of knowledge should have picked up on how to do this.

Yet too many haven’t.

We’ll be covering this in more detail in the fall webinar, but here’s a little taste of some recent evidence that some employment law practitioners do not know the basics:

Reid v. Air Force, CH-0752-14-0849-I-1 (2016): The misbehaving supervisor had a way of saying and doing things relative to the breasts and buttocks of other employees that were simply inappropriate in a federal workplace. When the agency finally got around to proposing that she be fired, one of the charges it relied on was “Touching and making a statement about the breast size” of another employee. And all of you certified practitioners who have completed our famous MSPB Law Week just about choked on your morning coffee when you saw that conjunctive “and” in the middle of this charge. Because you know that the law for nearly a quarter of a century requires that an agency prove both sides of a conjunctive change that is joined by an “and.” As the agency proved the touching but not the making a statement, the charge failed.

Bennett v. DVA, CH-0752-15-0367-I-1 (2016): Although the Board conceded that the appellant had a record of troubling behavior, it reversed the agency’s removal and put Mr. Bennett back to work because it simply could not “uphold his removal by affirming a poorly drafted charge.” And the horrific charge? Eerily similar to one we use as a bad example in our FELTG on-site one-day Charges seminar: “Disrespectful, intimidating language toward a supervisor/Conduct unbecoming a Federal employee.” Was it disrespectful? Was it intimidating? Was it both? And how’s all that related to unbecoming conduct? Would the conduct have been “becoming” if appellant was NOT a federal employee? Just think of all the good DVA could have done for our vets with the money it has to spend to pay this guy’s back pay. At least, a nice balloon party.

We’ve got more. So sign up for our Update webinar, if you can take pain and humiliation. If you want Mr. Nice Guy, go talk to an EAP counselor. If you want to learn how to be a better practitioner and not embarrass your agency and the rest of us in the same profession, come to our seminars. Learn this business. Everybody makes mistakes, but there are no excuses for mistakes that could (and should) have been easily avoided. Wiley@FELTG.com

 

 

Here We Go Again

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By William Wiley

I am so tired of this. Once more, we have an agency head that is being given bad advice by his employment law practitioners, thereby embarrassing himself and the civil service on Capitol Hill and in the press. Here’s the scenario that repeats itself every couple of months:

1. Agency employees do Bad Things.
2. Congress finds out about the Bad Things and summons the agency head to a Congressional oversight committee hearing to explain what’s being done.
3. Agency head says he knows about the Bad Things, but can’t do anything about it because of those pesky old civil service rules that keep him from disciplining employees.

AAAUUUGGGHHH! We are going to lose our civil service if this claptrap keeps up. The latest episode was on the front page of the Washington Post a week or so ago and involved our friends at the National Park Service.

If you know any of the following people (or their advisors), please send this article along:

• Jonathan Jarvis, Director of the National Park Service
• Sally Jewell, Secretary of the Interior

The article described alleged sexual harassment and whistleblower reprisal at a specific national park and the testimony of senior Park leadership before Congress regarding the allegations. While not denying the misconduct occurred, NPS Director Jonathan Jarvis stated that no one had been disciplined “because civil servants have strong rights to appeal disciplinary proceedings, taking action against them is not easy.”

Well, that’s just wrong. Whoever briefed Director Jarvis regarding civil service discipline and appeals did not do a good job. OK, OK; maybe “not easy” is shaded just enough to be truthful. However, the idea that the civil service protections somehow justify not disciplining employees who deserve it does our entire federal workforce and those who serve in it a huge disservice. As my grandmother used to say, “It’s a poor craftsman who blames his tools.” If you don’t know how to fire people from government, maybe go look in the mirror instead of in your tool box. The system has been in place nearly 40 years, and trained employment law practitioners use it every day to effectively and efficiently remove bad employees. If you were told otherwise, Director Jarvis, you were given incorrect information.

For over 15 years, FELTG has been honored to provide periodic how-to-discipline training for supervisors throughout the government, including the Park Service. On a personal note, it is tremendously rewarding to help a supervisor learn how to deal with a problem employee, removing the employee from service if that becomes necessary. So many supervisors are frustrated by the absence of good advice on how to take discipline quickly and effectively. Here at FELTG, we teach them the way to fire a bad performer in 31 days, and how to make it stick on appeal.

Last year, I was approached during a classroom break by an agency attorney who was attending one of our famous open-enrollment seminars in Washington, DC. She said that she knew that FELTG was teaching supervisors at her agency how to fire people, and that we needed to back off. In her opinion, I was making a mistake (and causing her problems) because I wasn’t taking into consideration the “culture” at her agency. Since at FELTG we teach how to remove bad employees quickly and efficiently, I assume she meant that at her agency, the culture is not to take quick efficient discipline.

She identified herself as being with the general counsel’s office at the National Park Service.

It’s all starting to come together now.

Relatedly, I reviewed the judge’s decision in a case referenced in the article, a case in which the Board found that the Park Service engaged in whistleblower reprisal. An element of that case was whether the whistleblowing appellant had a good-faith belief that an agency official violated a government regulation. Although the agency’s Office of Inspector General specifically found that the agency violated government regulations, the agency argued to the judge that the appellant did not have a good faith belief in that fact. In analyzing that claim, the administrative judge concluded, “I am, frankly, astounded by the agency’s representations and arguments. Unless it did not read its own OIG report, I cannot fathom how it could make such assertions.” Carter v. DoI, AT-1221-13-2153-W-1 (December 3, 2014).

Ouch. It’s never a good day when a Board judge refers to your arguments as astounding and concludes that she “cannot fathom” how you could make such representations. Maybe there’s more than a counter-productive “culture” going on with the Park Service. We are happy to help – give us a call. Wiley@FELTG.com

A Collection of Odds and Ends

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By William Wiley

Every now and then a case comes along that contains a bunch of good learning points, but does not actually cut much new grass on the lawn of federal employment law jurisprudence. Here are some things we learn and are reminded of in the judge’s decision in Carter v. DoI, AT-1221-13-2153-W-1 (December 3, 2014):

  • A Letter of Counseling is a “personnel action” and can be the basis for a claim of whistleblower reprisal IF AND ONLY IF it contains a threat of future discipline. No threat of future discipline, no personnel action, and therefore no viable whistleblower reprisal claim.
    • Of course, if you issue a Letter of Counseling without a threat of future discipline, even though there is no viable claim of reprisal, that does not stop an angry employee from forcing you to defend yourself all the way through discovery, a hearing before an administrative judge, and an appeal to the three Board members. SO DON’T USE THEM! THEY ARE WORTHLESS AND HAVE TO BE DEFENDED!
  • Ordering an employee to direct all complaints through the chain of command is a form of whistleblower reprisal and the agency is automatically liable. Therefore, to avoid a reprisal finding, IT’S ok TO order the employee to use the chain of command, but specifically tell the employee that he is still free to take any concerns he has regarding wrongdoing to the Office of Special Counsel, the Office of Inspector General, the EEO office, Congress, or to any law enforcement organization.
  • An inappropriate touching by a coworker is not a “personal action” for the purpose of claiming whistleblower reprisal. However, a reprisal claim can be made regarding an agency’s failure to discipline the whistleblower toucher.
  • If a supervisor has shown a lack of candor (e.g., fails to tell the truth) during an OIG investigation, a judge is likely to disbelieve any future statement that the supervisor makes in a related appeal before the Board.
  • Arguing to a judge that a putative whistleblower could not have had a good-faith belief in the facts underlying her disclosure will cause the judge to say nasty things about you if the agency’s own IG found those facts to be true (see article above).
  • Knowing that an employee is giving statements to an IG investigator suffices to establish that the supervisor had knowledge that the employee is a whistleblower even if the employee never says to the supervisor, “Hey, boss; I’m a gosh-darned whistleblower.”
  • If a supervisor gives a whistleblower a lower performance rating than the employee received the previous year before the whistleblowing, the supervisor will have to give a good reason for the lowered rating or else be found to be a whistleblower repriser.
  • If an agency has a five-level performance rating program, and it defines the Fully Acceptable level, but not the Minimal level of performance for an employee, it cannot rate the employee Minimal if the employee is a whistleblower or it will be guilty of whistleblower reprisal.
    • Hint: Go to a Pass-Fail system and you will have one less problem with claims of discrimination and reprisal. Unless, of course, you can articulate a reason why you think five levels is better. Hint: You cannot.
  • If a critical element has several subparts, the agency should state how an overall element rating is derived based on the independent evaluation of each of the parts. For example, after the several components of the element are listed, the performance plan should say something like, “A rating of Minimal on any two or more of the subparts of this element warrants an overall rating on this element of no better that Minimal.”
  • The supervisor’s testimony at hearing as to the appellant’s performance should be consistent with, and certainly no lower than, the appellant’s most recent official performance evaluation.
  • If on several occasions you grant a whistleblower administrative leave for something, and then you decide to stop, you’d better have a darned good reason (otherwise known as proof at the clear and convincing level).

The facts in this case are not nearly as interesting to a practitioner as are the above learning points, but here they are anyway. The appellant was upset because she had been reporting agency violations of regulations to an IG, and in response the agency had been (allegedly) mistreating her. Specifically, she claimed that the agency did the following to her because she is a whistleblower:

  1. Oral counseling
  2. Written counseling
  3. A physical assault
  4. Failure to remedy a physical assault
  5. Delay in approving her leave share request
  6. Denial of administrative leave to seek EAP counseling
  7. Lowered performance rating, from Superior to Fully Acceptable
  8. Harassment in the form of:
    1. Anti-whistleblowing emails from coworkers
    2. Whistling at her by coworkers
    3. Coworker declining to talk to her

When she took her claims to the Office of Special Counsel, that office dismissed her complaint, finding no basis for her allegations. Then she and her attorney took the case to the Board’s administrative judge. In a 20-page decision, including 17 footnotes, the judge found that two of the ten alleged acts of reprisal occurred. As a remedy, the judge ordered that the agency grant her in the future all the medically necessary administrative leave required to remedy her assault, and provide her all the benefits she should have received if properly given a Superior performance rating.

Your tax dollars at work. Wiley@FELTG.com

Equal Pay for Equal Work: Recent Federal Sector Equal Pay Decisions

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By Deryn Sumner

Although claims of unequal pay occur less in the federal government than in the private sector, thanks to the published salary scales issued by OPM, they do still occur.  As a reminder, EPA claims can be filed by either male or female employees.  In order to succeed on a claim, the complainant must establish that she or he works in a job requiring equal work, skill, effort, and responsibility, under similar working conditions and within the same establishment as an employee of the opposite sex, but for less compensation.  Assuming that showing is made, an agency avoids liability by establishing that the distinction in pay is based on a reason other than sex, such as seniority, a merit system, a system by which pay is determined by quantity or quality of work, or some other differential.

In Heidi B. v. Dep’t of Health and Human Services, EEOC No. 0120152308 (June 3, 2016), the agency was unable to overcome an allegation of an EPA violation where the complainant worked as a GS-0201-12 HR Specialist and alleged she should have been paid at the GS-13 level, as a male HR Specialist was.  The agency argued that an audit revealed that the complainant “did not have the extent of independence and latitude in her classification work which would have been commensurate with performing duties at the GS-13 level of pay. Thus, the Agency argued Complainant did not establish a prima facie case under the EPA.”  The Commission disagreed, noting that audit did not compare the duties the complainant performed as compared to the identified male employee, nor did the record support that the male comparator’s job involved more responsibility. Therefore, the Commission found the complainant established a prima facie case.  The Commission then concluded that the agency failed to establish any defense to the claim.

Compare that to the result in Vaughn C. v. Dep’t of Veterans Affairs, EEOC No. 0120152918 (June 23, 2016). There, the complainant was a GS-11 Clinical Applications Coordinator (CAC) and during a conference call, became aware that a white, female CAC in another location was paid as a GS-12. The Commission did not bother to address whether the complainant established a prima facie case and assuming that he did, found that the VA established that the female comparator was required to perform additional and more complex duties, which established a factor other than sex in the salary discrepancy.

EPA claims require a clear step-by-step analysis to both bring and defend against.  During the investigation and in discovery if needed, be sure to identify the comparators, get the information about the position itself (don’t just rely on the position description), and address each element of both the prima facie claim and the affirmative defenses. Sumner@FELTG.com

In Case You Still Believe in Santa Claus

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By William Wiley

Ah, the innocence of youth. Magical beings enter your home and leave gifts, mom and dad are asexual, and our political leaders are making rational decisions based on a careful assessment of the evidence and argument. Sadly, as adults, we find out that real life is a little different.

Let’s take a recent case in point. First, I want to establish that I am not taking a position on who is right and who is wrong in this case; i.e., were the whistleblowers mistreated and the civil service abused by these agency managers. The point of this piece is to point out that how Congress (and the media) reacts to things may not actually be warranted given all the facts.

Here are the high points (or low points, depending on your point of view) from a recent series of articles about the “downfall” of top agency officials at a large federal agency. Based on both facts and allegations in the media, we read:

  • Awards:  One specific top agency official received a $10,000 bonus (more or less) on nine occasions in about a one-year period. That’s an additional $90,000 above his annual salary of about $180,000.
  • Reassignments:  That same top official allegedly forced transfers to punish agency employees who spoke out about security lapses and agency mismanagement.
  • Demotions:  After reporting security violations, an agency employee had his pay reduced two grades.

Here at FELTG, we may not know anything more than what we read in the papers, but we do claim a fair amount of knowledge regarding civil service law. With that in mind, here’s how the above three allegations look to us:

  • Awards:  Employees don’t award themselves. Awards almost always are recommended by the employee’s supervisor and then approved at some higher management level. I don’t think it’s even possible for an employee to refuse an award. At least, I’ve never seen it happen. So why fault the “top agency official” who was on the receiving end of a bunch of suspicious cash awards? Shouldn’t somebody be looking into whoever it was that recommended and approved the awards instead? I can’t tell if the “top agency official” is a good guy or a bad guy, but I can sure tell that he is not able to award himself.
  • Reassignments:  Employees who speak out on matters regarding security lapses and gross mismanagement are legally defined as “whistleblowers.” It is illegal to transfer most any federal employee in reprisal for that person blowing the whistle.  Most every federal agency provides annual mandatory training regarding this right. To stop an improper transfer, all the employee has to do is call (800) 872-9855, describe a situation that is possibly whistleblower reprisal (not prove that it actually is, but just that it might be), and the Office of Special Counsel is empowered to intervene to obtain a stay of the transfer. Therefore, if there actually was an improper transfer, either the employee did not call the toll-free number, or he could not convince OSC that he was possibly the victim of reprisal.
  • Demotions:  Most federal employees have the right to challenge a demotion by filing an appeal with MSPB. Those few who are excluded from MSPB’s jurisdiction have the right to challenge demotions through an internal neutral review process involving several management officials. Employees are routinely notified of these rights at the time the demotion is implemented. Therefore, if there actually was an improper demotion, it was either approved by several agency officials – the majority of whom must have been bad people – or upheld by the bad MSPB, or the demotion was not challenged.

Once more, here at FELTG we are not taking a position on who is right and who is wrong in this scenario. It is even possible that these employees hold some sort of unique appointments in an unusual agency and that one or more of these analyses are off the mark. However, the odds are that we’ve correctly described the “real” facts. Hopefully, we’ve shown that there is a world of difference between reality and what our legislators choose to believe is bad about our civil service system. If there are truly mistreated employees in this scenario, our system has safeguards in place to protect them and undo the harm they have suffered. If there is fault in an employee receiving bonuses, the fault cannot be in the employee because those awards were approved by a higher authority.

Goodness knows we are quick to point out failings and shortcomings in our oversight systems. However, when others see failings where there are none, we have to speak to those, as well. We love our civil service, even though on occasion we disagree with those who oversee parts of it. Wiley@FELTG.com

MSPB’s Non-Precedential Decision Policy is Bad for America

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By William Wiley

Beginning in 1979, MSPB issued two types of decisions: precedential and short forms. The short form says nothing other than a Petition for Review challenge to a judge’s decision has no merit, much like the Supreme Court’s say-nothing orders that “deny certiorari.”

A full “Opinion and Order” precedential decision discusses an important civil service principle, and contributes to the development of federal employment law. The Board’s reviewing authority, the US Court of Appeals for the Federal Circuit, is bound to affirm an MSPB Opinion and Order on appeal unless it is:

  • Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
  • Obtained without procedures required by law, rule, or regulation having been followed; or
  • Unsupported by substantial evidence.”

5 USC § 7703(c); see Terban v. Energy, 216 F.3d 1021 (Fed. Cir. 2000)

About five years ago, the then relatively-new leadership at MSPB decided to replace the say-nothing short form dismissal with a new type of decision, a non-precedential order (NP). These new orders were defined by the Board as not contributing significantly to the Board’s case law, 5 CFR 12901.117(c). In other words, they were intended to dismiss the less-important issues while simultaneous giving the reader insight into the members’ rationale for doing so.

When the NP change was announced, this newsletter argued strongly against it for several reasons:

  • Writing substantive NP decisions in the 60% of the appeals that formerly were short-formed would double the workload at MSPB without any commensurate increase in the value of the decision.
    • An increased workload would result in increased delays in issuing decisions thereby denying appellants a prompt resolution of their cases and increasing the government’s back pay liability in appeals in which a removal was set aside.
  • NPs allow the Board to create secret anti-agency case law, case law that cannot be challenged by agencies on appeal. You see, only significant decisions can be appealed by the government to federal court. As NPs, by definition, are not significant, the Board can give direction to its judges relative to the thoughts of the members via an NP, and an agency cannot do anything about it (whereas an appellant can).
    • Yes, the Board says in the introduction to an NP decision that a judge is not required to follow its reasoning. However, if you do not think that judges read these things and apply the rationale to later cases, you do not know how a judge thinks. If you were a Board judge, and an NP decision said the answer is X, would you not go with X the next time you saw that issue, knowing that if you said Y or Z the members will reverse and remand the case to you? Everybody likes to go home on time, even MSPB judges.
  • NPs confuse consumers: the parties, the courts, and us practitioners. We do not know what to do with them and they double the research case load, although we’re not sure they are worthwhile as precedent.

Here’s an example that reinforces our argument that MSPB made a mistake when it decided to begin issuing NPs. On July 14, 2014, the Board issued an NP order in the appeal of a putative whistleblower. The appellant had disclosed his belief that a private sector company had committed tax fraud. The judge had found disclosures related to misdeeds by private entities were, per se, not the sort of disclosure protected by the whistleblower protection laws. Two of the three members agreed, holding that the whistleblower laws protect those who disclose government malfeasance, not private entity malfeasance. Aviles v. Treasury, DA-1221-13-0518-W-1 (2014).

MSPB Vice Chairman Wagner disagreed. She argued in dissent that the then-recent amendments to the Whistleblower Protection Act expanded the protection of whistleblowers beyond those that report government malpractice, but also to those who disclose waste/fraud/abuse by private entities in their normal course of duties.

This issue is HUGE. If Congress indeed intended to expand the definition of whistleblower to cover those who report non-government bad deeds in the normal course of their duties, as argued by Vice Chairman Wagner, the universe of whistleblowers increases by several-fold, as there are hundreds of thousands of government employees who have the opportunity to do this sort of thing as a routine part of their work. One would think that if one of the three Presidential appointees at MSPB believes this is what Congress clearly intended “as a matter of plain logic,” the Board’s decision in this matter would be worthy of a precedential decision.

Well, the members did not think this way. They decided to hide this intra-Board disagreement in an NP, thereby relegating the competing rationales of the dissent and the majority opinion to the never-never land of Board law.

In response to the NP order denying his appeal, appellant Aviles took the Vice Chairman’s arguments in his favor to the United States Court of Appeals for the Fifth Circuit. As it turns out, this NP decision became the very first decision to be appealed directly to the Fifth Circuit as provided for in the alternative forum provisions of the 2012 amendments to the Whistleblower Protection Act. The Fifth Circuit did three interesting things with this “insignificant” Board order:

  1. Held that it would not decide whether it was bound to provide the 5 USC § 7703(c) (Terban) deference to an NP decisions (the court is just as confused as the rest of us).
  2. Concluded that the US Federal Circuit Court of Appeals, the court that has been ruling on appeals of Board decisions involving whistleblowers for 25 years, is using the wrong evidentiary standard when assessing jurisdiction (e.g., that the motion-to-dismiss standard should be applied to these appeals, not the summary judgment standard used by the Federal Circuit).
  3. That the logic of Vice Chairman Wagner, as argued by the appellant, was “at odds with common sense and principles of statutory construction.” Aviles v. MSPB, 779 F.3d 457 (5th 2015)

Vice Chairman’s rationale was clearly wrong in this matter. However, she was indeed one of the three individuals empowered by the President, with confirmation by the Senate, to make these decisions. Her dissenting logic and arguments should not be relegated to the world of non-precedential orders, especially so when the case involves significant matters of Board jurisdiction and Federal Circuit precedent. Wiley@FELTG.com

Swearing (at?) the Proposal Letter and Other Matters

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By William Wiley

Questions, we get questions. And we got several follow-up questions from a certified practitioner who recently completed our famous FELTG MSPB Law Week seminar. Always good to hear that class participants are picking up on things. Below are my responses, in bold.

  1. Mr. Wiley stated that he now recommends that proposed discipline is sworn by the PO. Is that true for disciple that is not appealable to the MSPB? Yes. Why do you recommend that proposals be sworn to?

By adding the penalty of perjury statement to a proposal letter, the statement is converted from a simple hearsay documenting the agency file to a document having greater evidentiary value. “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)”.  28 USC 1746. The Board consistently gives significant weight to uncontroverted penalty of perjury statements, and lesser evidentiary value to evidentiary statements made in an unsworn document.  There is always the possibility that a proposing official will not be able to testify at hearing. Adding the penalty of perjury statement converts those factual statements in the proposal – perhaps things that the PO observed personally – into hard evidence that the agency can use to support its case. Without that statement, it cannot use the proposal as evidence of very much. As there is value added and as there is no reason NOT to include the statement, I think it is prudent to do so.

  1. In the class Mr. Wiley said that the deciding official should complete a DF [Douglas Factor] analysis on a worksheet. However, in the version of his book that’s available on CyberFEDS©, the DF analysis is in the document. Which one is correct?

Both are correct. However, attaching the worksheet itself is a stronger approach, and an approach that I developed after CyberFEDS© published the desk book. I believe I wrote the desk book around 2005.  In 2010, the Board began a more scrupulous review of the Douglas Factors. Therefore, my practice evolved.

  1. Mr. Wiley said that if one of our supervisors is confronted with a record that another supervisor gave a lesser penalty, then he could say: “If I was that supervisor, I would have handled it differently.” HR has said that that recommendation is not supported by the case law, and even if a manager would have handled it differently, we are bound by the previous decision, absent distinguishable facts. Do you agree? Is there any case law or other references that support the recommendation?

Davis v. USPS, 120 MSPR 457 (2013): “The deciding official further testified that he was unfamiliar with the [comparator employee] or the circumstances of his discipline, but that he would have removed the [comparator employee] if he had been the deciding official in that case.”

  1. Mr. Wiley said that MSPB is pulling back from the idea that you have to disciple consistently throughout the agency. HR disagrees, and I can’t find any authority in support of the statement.

I reach that conclusion from reviewing how the Board assessed the factors in a recent case like Chavez v. SBA, 2014 MSPB 37, and the facts in the collection of the four 2010/2011 cases that started us down this dark road of comparator employees: Lewis/Woebcke/Villada/Raco. In Chavez, the Board addresses three points that they ignored in the Terrible Trilogy: 1) penalties effected post-removal are due limited weight (the greater the length of time between the two, the less weight the later penalty warrants), 2) different discipline officials in different chains of command can justify different penalties, and 3) the agency need not compare appellant to employees who engaged in similar misconduct, unless that misconduct was actually charged. The discipline officials in Lewis/Villada/Raco were different from the comparators. However, the Board did not consider that when mitigating the penalties in those cases. Yet in more recent cases such as Chavez , the fact that the employees were in different chains of command was a major factor in the Board not mitigating that penalty.

In other more recent cases, the Board has spoken to non-mitigating factors it did not consider in 2010/2011. For example, the Board now considers a lack of knowledge on the part of the deciding officials relative to other discipline to be a non-mitigation factor. Ly v. Treasury, 2012 MSPB 100 (“Any difference in treatment between the appellant and the comparator was not knowing and intentional on the part of the deciding official.”) Knowledge on the part of the deciding officials (or lack of knowledge) was not a consideration in the earlier Terrible Trilogy comparator-mitigation decisions.

Finally, the Terrible Trilogy decisions were issued by Board members Grundmann/ Wagner/Rose soon after Grundmann and Wagner were appointed and began issuing decisions in 2010. Member Robbins was appointed in 2012 subsequent to the Terrible Trilogy decisions to replace Member Rose and immediately dissented from the comparator theory of the Terrible Trilogy. Boucher v. USPS, 118 MSPR 640 (2012). Ms Wagner is now gone and Ms Grundmann’s appointment has expired although she is holding over until after the Presidential election, by all appearances. Putting all of this together leads me to the conclusion that the Board is moving away from its poorly thought out approach in the Terrible Trilogy.

Hope this helps. Best of luck-  Wiley@FELTG.com

This should be GOOD News, not Bad News

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By William Wiley

As we’ve written in this newsletter previously, if your Uber driver picks you up promptly, takes you where you want to go quickly, and is in general nice to you, you rate her 5 stars because she’s done exactly what you wanted.

With this reality in mind, let’s look at some recent numbers from GAO relative to the 2013 federal employee summary performance ratings:

  • Most all agencies have a five-level (5-star) performance evaluation system: Outstanding, Exceeds, Fully, Minimal, Unacceptable.
  • 61% of GS-1 through GS-15 employees were rated either 4- or 5-stars.
  • The higher the grade level, the higher the rating; e.g., 78% of GS-13 and above employees were rated 4- or 5-stars, whereas only 67% of GS-9 through 12 employees received either of these ratings.

One commenter suggested that these findings are a bad reflection on performance management in the civil service by stating, “The GAO report is likely to add fuel to the debate about whether federal performance management is effective.”

No, no they are not. These are wonderful numbers.  They show that 2/3s to 3/4s of federal employees are doing just about the best we can expect from them.  Isn’t this what you would expect from a group of merit-based selectees who are among the best and the brightest? Isn’t that what a merit selection and promotion workforce is supposed to look like, including that those who rise in the ranks to the higher levels get better ratings (because they are better employees)?

It just blows me away when people look at numbers like these and think that there’s something wrong with our civil service performance management system. We get asked to rate and give feedback on so many things these days. If you owned a company and found out that your employees were all rated at the top of a scale, wouldn’t you be delighted? If you drive for Uber, and you consistently get 3-stars, you don’t drive for them much longer.

If people were assigned to work in the civil service randomly, then their performance ratings should follow a bell curve: most in the middle, and fewer 4s and 5s. However, selection into the civil service is the opposite of random. It’s based on merit: talent, education, and experience. Therefore, it should come as no surprise (at least no surprise to those who paid attention in statistics class) that most feds are rated highly.

Goodness knows that agency management could do a better job of removing poorly-performing employees. The Chairman of MSPB said several years ago that 5-7% of the federal workforce is not performing adequately. However, that is unrelated to the fact that most federal employees are doing a good job. That’s why they get good ratings. The world would be a better place if we would accept that we should expect 4- and 5-star ratings from a merit-based workforce, and focus our performance-management energy on getting rid of the bottom of the barrel.

And while we’re at it, making recommendations and all like we here at FELTG know how the government should be run, here are a couple more suggestions to you policy makers:

  • All government performance rating systems should go to a 5-star format. Get rid of the stupid names for levels. “Isn’t Exceptional a better rating than Outstanding?” If it’s good enough for TripAdvisor and Yelp (and Uber and Zagat and just about everybody else), then it should be good enough for the civil service.
  • Service recipients, either internal to the government (e.g., Feds who call an agency Information Technologist for help) or external (e.g., citizens who go to a social security for assistance), should be the primary source of performance ratings.
  • Employees should be required to wear a lapel pen visible to the entire world with their star-rating for the past year. Post ratings on the web.

Performance management systems should be based on both common sense and science. Understanding that high ratings are to be expected from a merit-based workforce satisfies both of those requirements. Wiley@FELTG.com.

Do Not Extend the Notice Period for a Proposed Removal

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By William Wiley

Cut us, we bleed efficiency. OK, maybe too graphic. Come to our FELTG training and we will teach you how to quickly and effectively hold your employees accountable for performance and conduct while simultaneously providing all the rights the employee has under law.

Recently, we had a Human Resources participant in our fantastic MSPB Law Week seminar tell us that at her agency, during the proposed-adverse-action notice period (e.g., 30 days), the general counsel’s office routinely granted employee requests to extend the response period by 30 days, for a total of 60 days. When our participant questioned the reason for the delay, she says the response she got is that GC wants to be sure the employee gets due process.

Well, that’s a bad reason. I did some case law digging and could not find a single case in which an agency’s refusal to extend a statutory notice period was found to be a violation of due process. Ever. The law says that 30 days is adequate time to respond with a representative. Congress has even identified a couple of situations in which a reduced seven-day notice period satisfies the Constitutional right to due process (e.g., the crime provision and the new quickie SES removals over at DVA). Since we know that 30 days has been defined as adequate, and that there’s no case law contra, why would anyone extend the notice period?

Perhaps it’s fear. In my experience if an employee’s attorney asks for an extension of time, and that request is denied, the employee’s attorney will let loose with a barrage of loud objections: Due process! Right to a representative of his choosing! I’m such a good attorney that I don’t have time to play around! I’ve even seen appellant’s counsel argue that Board decisions finding a denial of a time extension by a judge is somehow related to a denial of an extension by a deciding official. Yes, if you deny the request for an extension, you should be prepared for noisy complaints from the employee’s lawyer (the same noises I would make if I were working that side of the bar). And if you don’t like to be yelled at or otherwise objected-to by opposing counsel, then you may well decide to grant the extension.

Of course, if it was your money that was paying the extra salary required of by an extension, you might balance things differently. What does an extra 30 days cost the government; maybe $10,000 if you figure in the total compensation? That’s not a lot of government money in perspective. However, if it was coming out of your personal checking account, maybe you’d think twice about granting an extension request. It’s easier to say “yes” than it is to say “no,” but that “yes” comes with a significant price tag when it’s your personal money.

Perhaps it’s not fear-of-counsel. Perhaps the extension-grantor is just trying to be nice to the employee, to allow him plenty of time to defend himself. Well, why? Who’s the client for agency counsel? Obviously, it’s the agency. And when you have a proposed removal out there, you have an agency official (the proposing official) who with the assistance of an employment law practitioner is taking the position that the employee should be fired. Therefore, your client has tentatively reached the conclusion that removal is warranted. As an attorney, your role is not neutral. Your role is to represent the interests of your client. That doesn’t mean that you treat the employee unfairly, but it does mean that any decisions you make should be in the best interests of your client. It’s hard to imagine a situation in which allowing more than 30 days to present a defense to a proposed removal is in the best interest of the government. If an employee’s attorney when confronted with a detailed proposal letter plus supporting evidence cannot develop a defense within a few days, perhaps that attorney needs an assistant, or another line of work.

In my practice representing agencies, if opposing counsel requests an extension of time to respond to a removal, I do not grant that request routinely. In fact, I routinely deny the request. However, as this is a line decision in my option, if the client-supervisor concludes that the employee’s attorney has made a good case for needing more time (e.g., lightning strike, unexpected death in the immediate family, taken to the Mother Ship for unscheduled probing), I’m willing to grant the extension IF the employee will request LWOP to cover the extension period. If the employee’s attorney’s situation is dire enough to require additional time to prepare a response, let the employee pay for the additional salary expense. That way, it’s not a matter of whether opposing counsel has a good excuse for needing more time. Rather, it’s a matter of who pays for it. And if I’m agency counsel with a fiduciary obligation to my agency, it’s not going to be the agency that pays. Wiley@FELTG.com