Room for Improvement at MSPB

By William Wiley, May 16, 2018

As many of you readers know, MSPB has been under a heavy workload for many years, with decisions sometimes taking too many months (and even years) to get out. We’ve written in this space before as to how the Board could streamline its final Opinions and Orders. Today we take a look at a typical administrative judge’s Initial Decision, one that could benefit from some trimming and focus.

First, you might want to read the initial decision: Avila v. Agriculture, MSPB No. SF-0752-17-0488-I-1 (February 26, 2018).  If you do, you’ll find that it took the judge 24 substantive pages to do what we’ve done below in two. You’ll find some paragraphs in the decision to be over two pages long, with all kinds of extraneous information thrown in; e.g., the color of the trellises on which the marijuana plants were growing, the cost of the overflights, and the suggestion that a “criminal disruption” had been contemplated. Most distractingly, you’ll have to get to page nine before the judge bothers to tell you what the charge is.

Lengthy decisions like this take a lot of time to write and review on appeal. By cutting to the chase, the Board’s judges could save time, get these things issued more expediently, and still provide the appellant fair treatment. As importantly, it helps us all capture the big issues without being distracted. For example, in the original decision, you’ll see a lot of grand citations to grand principles of law, and a reasonable conclusion. However, what you’ll find missing is an analysis of the gravamen of the appellant’s argument: should she be held responsible for marijuana in her home if it was not her marijuana? Focused writing might have surfaced that issue for resolution.

So, here’s our FELTG Initial Decision, if we were in charge of how these things are written:

On May 12, 2017, the Forest Service removed Catherine A. Avila (appellant) from her position as Forestry Technician, GS-462-9 based on a single charge of “Conduct Unbecoming a Federal Employee.” The specification on which this charge was based describes the uncontested fact that marijuana was being grown on her property.  This appeal followed her removal. As explained below, I AFFIRM the removal.

ANALYSIS AND FINDINGS

Significant among the appellant’s duties was the requirement to work independently enforcing federal laws and regulations relative to the forest in which she worked. On April 29, 2015, Forest Supervisor Carlson issued a written reminder to the appellant and others that the possession of marijuana is illegal under federal law, and that law applies to all Forest Service employees regardless of contrary state laws. Subsequently, on July 19, 2016, Special Agent Mayo observed about a dozen marijuana plants in the backyard of the appellant’s home. In August 2016, Carlson again reminded employees that Forest Service employees cannot grow marijuana at home even if the employee’s spouse has a medical marijuana prescription. Subsequently, on September 27, 2017, Special Agent Mayo again observed about a dozen marijuana plants growing in the appellant’s backyard.

Following the second observation, an agency investigator questioned the appellant. In this interview, the appellant admitted:

• She jointly owned the home in which she lived with her husband.
• She knew that marijuana was being grown there.
• People came to her home to purchase marijuana.
• Her husband processed the marijuana in their home and transported it in their shared car.
• The money from the sale of the marijuana was kept in the home.

Throughout the interview, the appellant asserted that the marijuana was not hers, but her husband’s. At hearing, the appellant attempted to recant part of her statement, asserting that she did not know whether there was marijuana was on her property or how her husband transported it. I find the appellant’s hearing testimony to be wholly unpersuasive and improbable. Hillen v. Army, 35 MSPR 453 (1997). Therefore, I SUSTAIN the charge.

PENALTY

The appellant is known throughout the community as an employee of the Forest Service. Possession of marijuana at her home affects her status and reflects negatively on the agency. Her work requires her to work independently enforcing federal laws and regulations. The fact that she continued in her illegal activities after being warned twice demonstrates exceedingly poor judgment. She has been previously reprimanded and suspended. Her actions reflect that she does not have an appropriate sense of how federal law applies to her. Therefore, I conclude that the agency’s selection of the penalty of removal is reasonable.

AFFIRMATIVE DEFENSES

The appellant claims sex discrimination in that she was not offered the opportunity to enter into a Last Chance agreement as were three male coworkers. However, such differential treatment is justified in that none of the male coworkers had previously been disciplined. Separately, although the comparator male employees had been involved in marijuana-related offenses, none had engaged in the more serious aspects of the charge in this case of cultivation, distribution, and sale of marijuana from their homes. As the appellant has presented no other evidence of sex discrimination, I find she was not the subject of sex discrimination.

The appellant also claims age discrimination. However, as she has offered no evidence of such mistreatment, I find she has not proven that she was the subject of age discrimination.

The removal is AFFIRMED.

The very earliest Board decisions were very short; some just a page. Over the years, MSPB and its judges have added more and more legal and factual verbiage to decisions, without any commensurate benefit. If MSPB wants to be around another 40 years, perhaps it should consider going back to the writing style of the good old days. Wiley@FELTG.com