Top 10 Cases of 2022 Impacting the Federal Workforce
This week on FEDtalk, host James Heelan joins the program with colleagues Conor Dirks and Michael Sgarlat - Attorneys at Shaw Bransford & Roth, PC. The Attorneys author the weekly case law updates for FEDmanager and FEDagent and speak from a combined almost three decades of experience representing federal employees in federal district and appellate courts, and administrative forums.
Number 10—MSPB Penalty Determinations
The Merit Systems Protection Board is back. In each case, the Board closely scrutinizes the penalty decisions of its administrative judges.
In Thomas v. Department of the Army, the Department of the Army removed the appellant in September 2015 based on one charge of conduct unbecoming a supervisor. The charge was supported by two specifications. The first specification alleged that the appellant made unwanted comments to female employees calling them ‘sexy’ or ‘beautiful,’ which the appellant’s supervisor addressed with him several times over a 6-month period. The second specification alleged that, during this same 6-month period, the supervisor addressed with the appellant complaints about his practice of engaging in closed-door meetings and personal conversations with one female employee. On appeal, a MSPB Administrative Judge mitigated the penalty to a 14-day suspension and demotion to a non-supervisory position.
The Board modified the analysis of the first specification, vacated and reversed the initial decision with respect to the penalty, and sustained the agency’s removal action.
In Chin v. Department of Defense, the appellant, a Security Specialist at the Department of Defense, took an extra $5.00 worth of food from the agency cafeteria without paying for the additional food. The agency removed the appellant based on this conduct and charging a violation of 18 U.S.C. § 641. The appellant filed an appeal, denying the charge and asserting that his failure to pay for the additional food was inadvertent and a result of his type 2 diabetes. He explained that his blood sugar was low at the time, and he urgently needed to eat, causing him to not realize he had not paid for the additional food. The administrative judge upheld the charge and the agency’s penalty of removal. The appellant filed a petition for review with the Board.
The Board held that the deciding official failed to appropriately consider the relevant Douglas factors—a list of 12 non-exhaustive factors that are relevant in assessing the penalty imposed for an act of misconduct. In particular, the Board stated that the official did not consider mitigating factors such as the de minimis nature of the theft, the appellant’s 30 years of service, and his satisfactory work record. Rather than weighing these mitigating factors, the official deemed them “irrelevant.” As a result, the Board declined to defer to the penalty determination and found that a 90-day suspension is the maximum reasonable penalty for the misconduct.
Number 9–Ex Parte Communicating by Deciding Officials
Deciding officials should not bring their work home. The Federal Circuit held that ex parte communications that violate due process can come from anywhere, including asking family members for advice.
In Johnson v. Department of the Air Force, the appellant, a firefighter at the Air Force, was fired after failing a drug test. Importantly, the appellant took several medications, and he lived with his mother who also took several medications. When the appellant informed his supervisor of the positive result of his drug test, he explained that he believed he had accidentally taken his mother’s medications. The appellant was subsequently fired.
The appellant challenged his removal, and, at the resulting arbitration hearing, the deciding official testified that he did not believe the appellant’s explanation that he took the wrong medicine. He further testified that he “consults advisors” in order to make decisions, and, in the appellant’s case, consulted his “number one advisor, [his] wife,” who was a registered nurse. He additionally stated that he spoke to his brother-in-law, a nurse practitioner, about the case. Both the deciding official’s wife and brother-in-law told him that likelihood of the appellant’s explanation being accurate were “slim to none.”
The court concluded that the deciding official’s ex parte communications violated the appellant’s right to due process, and it remanded the determination of a remedy to the arbitrator.
Number 8—Curing Due Process Issues on Appeal
In a decision emphasizing government efficiency, the Federal Circuit held that, if an agency makes procedural errors in an otherwise acceptable removal decision, the agency may again remove the employee after curing the errors.
In 2017, the Department of the Treasury initiated and sustained termination proceedings against one of its employees. On September 11, 2019, an MSPB AJ reversed the removal, finding that the employee demonstrated “harmful procedural error and a due process violation.”
The agency (and the employee) appealed the AJ’s decision. While the Board lacked a quorum, the agency once again proposed the employee’s termination, based on the same charge and specifications, but apparently curing the due process violation. That proposed termination was sustained.
In Coy v. Department of the Treasury, the appeals court found that while the first action was set aside for a procedural deficiency, that deficiency was not present in the second proceeding. Therefore, the second removal action was “permissible while the first removal was still pending before the Board because the second removal cured the procedural deficiency of the first removal and did not evade the first decision.”
Number 7—Who Is a “Government Actor” under the 4th Amendment?
This case clarifies what is needed for a federal employee to be considered a “government actor” triggering the Fourth Amendment’s prohibition on unlawful searches and seizures, and it acts as a guide for how federal employees should or should not behave if they inadvertently discover criminal activity.
In November 2017, a U.S. Postal Service (USPS) letter carrier was picking up a package at an address in Lafayette, Louisiana, when her thumb slipped through a hole. She lifted the torn flap of the package to assess what was inside and observed hard white rocks. She informed the property manager of the address, leading to a search of the package. The search revealed eighteen pounds of methamphetamine.
The court in United States v. Johnlouis concluded that even though the letter carrier was a federal employee working for an agency that employs inspectors who undertakes law enforcement activities, she was not an inspector and, more importantly, she was not carrying out a law enforcement function when she inspected the package. Therefore, the Fourth Amendment did not apply to her.
Number 6—Law Enforcement Retirement
This Federal Circuit decision ensures that federal employees who perform law enforcement duties, as defined by regulation, will be eligible for law enforcement retirement benefits, even if law enforcement duties are not included in an employee's position description.
In 2004, Transportation Security Administration (TSA) hired Robert Klipp to serve as a Supervisory Criminal Investigator in the position of Assistant Federal Security Director-Law Enforcement (AFSD-LE) for the New Orleans International Airport. ASFD-LE positions are not law enforcement positions. After a year passed and TSA didn’t hire any subordinates for Klipp to supervise, the agency converted his position from supervisory to nonsupervisory. He remained in that position for the remainder of his TSA career. Several years later, Klipp decided to seek law enforcement officer retirement benefits, which are only available for employees who served in certain types of law enforcement positions. TSA denied Klipp’s request, and a MSPB Administrative Judge affirmed that decision.
The Federal Circuit held in Klipp v. Department of Homeland Security the MSPB Administrative Judge should have looked beyond the AFSD-LE position description and allowed Klipp to prove that his actual duties in the position satisfied the law enforcement position criteria. Because agencies “will not always” keep position descriptions current, the Court held “entitlement inquiry requires consideration of both the position description and the employee’s actual duties.”
Number 5—Defining “Significant Change in Duties” for WPEA Purposes
The Board defined the types of “significant change” in duties that must occur in order for a whistleblower claim to survive, providing some much-needed clarity on an ambiguous issue.
In Skarada v. Department of Veterans Affairs, the employee alleged that as a result of his protected whistleblower disclosures, his managers: removed some of his previous duties and responsibilities, subjected him to a hostile work environment by ignoring him in the office, claiming they did not know the answers to his questions, failed to provide him guidance, became visibly angry with him and yelled at him. Finally, the employee alleged that the agency convened investigations against him in 2013 and 2015.
The Board characterized the issues as indicative of an “unpleasant and unsupportive work environment,” but held that they fell short of actually constituting a significant change in duties, responsibilities, or working conditions. As a result, the Board denied the employee’s whistleblower appeal.
Number 4—Defining “Abuse of Authority” for WPEA Purposes
In another decision clarifying requirements for whistleblower claims, the Federal Circuit defined, for the first time, what is meant by protected disclosures for “abuse of authority.”
In Smolinksi v. Merit Systems Protection Board, an Army doctor working in Germany testified in an internal investigation that the commanding officer of the Army hospital harassed his wife and intimidated him at a hospital function after his wife complained about the care she received. According to the Army doctor, the commander was “visibly intoxicated, attempted to intimidate [the Army doctor] as a lower-ranking officer, and…made [the doctor’s wife] extremely uncomfortable by whispering in her ear and touching her to the point where she remarked that if she had been alone…she thought he would have assaulted her.” After the ball, the Army doctor filed a complaint regarding this behavior. Then he began experiencing trouble at work.
Looking to other statutory sources, the court defined an abuse of authority as “an arbitrary and capricious exercise of authority that is inconsistent with the mission of the executive agency concerned.” As applied to this case, it held that the commander’s actions against the Army doctor were inconsistent with the Army’s mission, and therefore an abuse of authority.
Numbers 2 & 3—Narrowing Bivens
In the landmark Egbert ruling, the Supreme Court narrowed lawsuits against federal employees in their personal capacity and limited the application of Bivens remedies. The concurrence in the Court of Appeals for the District of Columbia builds on Egbert, arguing that the Federal Tort Claims Act should preclude a Bivens suit.
Egbert v. Boule arose from a conflict between Robert Boule, the owner of “Smuggler’s Inn,” a bed-and-breakfast on the U.S./Canada border, and U.S. Border Patrol Agent Erik Egbert. After an altercation between the two, Boule filed a Bivens lawsuit against Agent Egbert, alleging the agent violated his Fourth Amendment rights by entering his property, and his First Amendment rights by reporting him to the IRS. The Ninth Circuit held that Boule’s complaint stated valid Bivens causes of action. The Supreme Court accepted the case for decision, but declined to accept the petitioner’s request to consider overruling Bivens altogether.
Writing for a five-member Supreme Court majority, Justice Thomas reversed the Ninth Circuit’s decision because “[a]t bottom, creating a cause of action is a legislative endeavor” into which the Ninth Circuit improperly intruded. The majority emphasized that “even a single sound reason to defer to Congress is enough to require a court to refrain” from allowing new kinds of Bivens lawsuits to proceed.
In K.O. v. Sessions, the Appellants brought suit after the separation of migrant children from their parents as a result of Attorney General Jefferson Sessions’ zero-tolerance policy. The U.S. Court of Appeals for the District of Columbia declined to extend Bivens to the claim in an unpublished decision. Senior Circuit Judge Laurence Silberman issued a separate opinion concurring with the majority’s holding. Unlike the majority’s opinion, Judge Silberman’s opinion was published. He stated that “I would include as a reason to deny a Bivens action that the plaintiffs in this case had an alternative remedy for damages under the Federal Tort Claims Act (‘FTCA’). Indeed, they are pursuing such an action which makes their appeal for a Bivens action seem wholly superfluous.”
Number 1—Overruling 10 Years of Douglas Case Law
The Board overruled ten years of case law on the Douglas factor ‘disparate penalty’ analysis, limiting the scope of comparators that employees may use when arguing they have been disproportionately punished.
In Singh v. United States Postal Service, appellant, an employee at the United States Postal Service, was removed from his position as a result of an investigation by the Office of Inspector General. The appellant requested discovery from the agency regarding its treatment of agency-wide employees who engaged in similar misconduct in order to analyze Douglas factor 6: “consistency of the penalty with those imposed upon other employees for same or similar offenses.”
Addressing the appellant’s arguments on discovery of comparable employee penalties, the Board held that the administrative judge did not abuse her discretion in denying appellant’s request. It subsequently reigned in previous case law that allowed employees to make wide comparisons to other employees who had not engaged in similar misconduct or who worked in different units. The Board clarified that, although, a comparator does not need to work in the same unit or under the same supervisor as the appellant, “the relevant inquiry is whether an agency knowingly and unjustifiably treated employees differently.”
You can stream the show online anytime via the Federal News Network app and listen to the FEDtalk on all major podcasting platforms. FEDtalk is a live talk show produced by Shaw Bransford & Roth P.C., a federal employment law firm. Bringing you the insider’s perspective from leaders in the federal community since 1993.
You can stream the show online anytime via the Federal News Network app and listen to the FEDtalk on all major podcasting platforms. FEDtalk is a live talk show produced by Shaw Bransford & Roth P.C., a federal employment law firm. Bringing you the insider’s perspective from leaders in the federal community since 1993.
