This past week, the Federal Circuit Court of Appeals has issued a spate of decisions on appeals from the Merit Systems Protection Board in adverse action cases.
Each of these decisions is “non-precedential.” For our readers who have been wondering exactly what that means, this refers to the fact that each has the following legend printed at the top of the case decision: “NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record.”
While this makes these cases somewhat of a yawn as far as an attorney is concerned, there are still some interesting things that can be picked up from the decisions. For one thing, you often hear the lament that it’s impossible to fire a federal employee and make it stick. Not true, as these cases demonstrate over and over again.
They also will highlight the kind of procedural mess both sides can get into from time to time. A recent example is the Jones case (Jones v. Merit Systems Protection Board, C.A.F.C. No. 05-3134, 10/12/05).
The U.S. Army Corps of Engineers removed Jones from her position as a secretary. As so often happens in these cases, she filed an EEO complaint and then an appeal to the Board a few hours later. She ended up losing the discrimination complaint and finding her MSPB appeal thrown out for lack of jurisdiction because she had filed the discrimination complaint first. Ironically, she could have saved her MSPB appeal by simply filing it when 120 days lapsed without a final agency decision or within 30 days of her receipt of the final agency decision on her complaint.
But, we find the cases that address the merits of even more interest. We reported a few days ago on Phillips v. Department of the Air Force involving the removal of a criminal investigator for shoplifting, which was affirmed by the MSPB and the court. (See Shoplifting and the Federal Employee)
Following are brief summaries (including links to the decisions for those who want more details) in a couple more of the more interesting recent “non-precedential” appeals court decisions.
In Mercier v. Department of Justice, C.A.F.C. No. 05-3167, 10/12/05, the Bureau of Prisons removed a Maintenance Worker Supervisor. Mr. Mercier had been arrested and charged with carrying a weapon and controlling a motor vehicle while under the influence of alcohol, and with “lewd acts” with a minor. He pled to the first two charges and to a lesser offense on the third charge. The agency removed him for criminal misconduct, and the MSPB affirmed. (Opinion pp. 1-2 citing Perry A. Mercier v. Dept. of Justice, No. DA0752030405-I-1 (M.S.P.B. Feb. 9, 2005)).
Finding that the agency met its burden to prove:
- that the charged conduct occurred;
- that there was a nexus between the conduct and the efficiency of the service; and
- that the penalty imposed was reasonable.
The court was unpersuaded by Mr. Mercier’s affirmative defense of handicap discrimination based on alcoholism.
For the defense to work the individual must prove he was addicted and that the addiction caused the misconduct. Simply proving that he used alcohol is not enough. He must provide expert evidence to back up the claim. The court found such evidence lacking in this case. (Opinion pp. 3-4)
In Brown v. Department of the Treasury, C.A.F.C. No. 05-3180, 10/12/05 the IRS removed Brown from his position as Contact Representative. The basis was three incidents of AWOL and two incidents of failing to follow instructions.
He appealed to the Board. The AJ sustained his removal and the full board denied Mr. Brown’s petition for review. (Brown v. Dep’t of Treasury, Docket No. SF0752040077-I-1 (Initial MSPB decision Feb. 27, 2004; final MSPB decision March 7, 2005)).
The appeals court affirmed. In the Brown decision there is a good discussion of the elements of proof required for AWOL (Opinion pp. 3-4) and failing to follow instruction offenses (p. 4), as well as the appropriateness of the penalty (pp. 4-5).
As the court notes on this latter point, “the choice of penalty is left to the discretion of the agency,” and the court will not interfere ”unless the severity of the agency’s action appears totally unwarranted in light of all factors.” (p. 4) Mr. Brown also argued to the court that he had “ineffective union counsel” before the MSPB. The court dismissed this with the following language: “We have repeatedly rejected claims of ineffective assistance of counsel in regard to MSPB appeals. See Phillips v. United States Postal Serv., 695 F.2d 1389 (Fed. Cir. 1982).” (p. 6)