MSPB Held The Deciding Official's Knowledge And Involvement In The Appellant's OPR Investigation, Alone, Did Not Violate Due Process

The MSPB decided the issue of whether to reverse the administrative judge’s reversal of appellant’s removal based on whether the deciding official's knowledge and involvement in the employee's pre-removal investigation violated the employee's due process rights. The agency argued that the administrative judge erred in concluding that the deciding official’s prior involvement in the appellant’s investigation disqualified him from serving as the deciding official.

In this case, the agency removed the appellant, a Special Agent with the Drug Enforcement Agency (DEA), effective November 4, 2011, based upon two charges: (1) making a false statement and providing false documentation; and (2) having an improper association with a confidential informant (CI). The appellant admitted to the deciding official that he provided false oral and written statements about his engaging in a sexual relationship with a CI and that he actually engaged in the relationship as alleged, and the administrative judge noted that she would only adjudicate the reasonableness of the agency's penalty determination.

Following an in-person hearing on March 29, 2012, the administrative judge reversed the appellant's removal based upon a Ward /Stone due process violation. The administrative judge held that the deciding official was “clearly involved in the investigation of the appellant's conduct which led to his removal, as well as investigating alleged misconduct that is not included in the agency's proposal notice.” The administrative judge explained that the deciding official served in a supervisory role as the Associate Deputy Chief Inspector at the DEA's Office of Professional Responsibility (OPR) at the time OPR investigated the appellant's conduct. And, based upon the deciding official’s prior involvement with that investigation, the administrative judge determined that the deciding official was not an impartial decision maker.

The Agency appealed the administrative judge’s decision. On appeal at the MSPB, the Board considered whether the deciding official’s knowledge and involvement in the OPR investigation into appellant’s conduct prior to his becoming the deciding official was a due process violation.

The MSPB and Federal Circuit have held that a deciding official violates an employee's due process rights when he relies upon new and material ex parte information as a basis for his decisions on the merits of a proposed charge or the penalty to be imposed.

The MSPB held that the deciding official's knowledge and involvement in the employee's pre-removal investigation did not violate the employee's due process rights. The MSPB considered that the deciding official at the Drug Enforcement Agency did not rely on the investigation in deciding the employee's case, and that the deciding official: (1)  had briefed a member of the Office of Inspector General on the investigation, (2) had added employee's supervisor as the subject of an investigation, (3) had investigated alleged misconduct that was not cited as grounds for removing the employee, and (4) had received a memorandum concerning the final report into the Agency's investigation of the employee's misconduct. Thus, none of the deciding official’s instances of involvement were relied upon by the deciding official in considering appellant’s case. Further, the MSPB determined that the deciding official's mere knowledge of the appellant’s past discipline was not sufficient to show that official had relied on the past discipline.

Here, because the deciding official did not consider or rely upon documentation in his role as the deciding official to which he was only privy while overseeing OPR, “there is no due process violation based upon the agent’s failure to provide notice or produce such documentation to the appellant.”

Thus, the MSPB reversed the administrative judge’s initial decision and remanded the case. The case is Lange v. Department of Justice, 2013 MSPB 52 (2013).  To review the full decision, click here.

This case law update was written by Maria N. Coleman, associate attorney at the law firm Shaw Bransford & Roth, PC.

Posted in Case Law Update

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