Road Rage

By on October 11, 2006 in Current Events with 0 Comments

A fired attorney with the Office of Chief Counsel’s Immigration and Customs Enforcement Division in Los Angeles has lost her bid before the federal circuit to overturn her removal. (Frleta v. Department of Homeland Security, C.A.F.C. No. 06-3203 (non precedent), 9/11/06) The facts summarized below are taken from the court’s decision.

Frleta was a GS-14 general attorney representing the agency before immigration courts. She was convicted in a local California court of battery as the result of a road rage incident. She appealed but failed to have the conviction overturned. (p. 2)

The agency removed Frleta on the basis of three charges—conviction of battery; failure to follow instructions in a leave restriction letter on 30 different work days; and absence without leave on those same 30 work days. (pp. 2-3)

Frleta appealed to the Merit Systems Protection Board. The Board sustained her removal. Frleta appealed to the Federal Circuit Court of Appeals, but did not fare any better there.

Among other things, Frleta tried to challenge the basis of her criminal conviction for battery. However, she was “estopped” from being able to do so. She also argued that her removal was based on unlawful discrimination. The government argued that this made her case a “mixed case” (i.e. one that alleges discrimination as the basis for the agency action), therefore there is no jurisdiction before the MSPB and no jurisdiction before the federal circuit. The court agreed with the argument and dismissed Frleta’s appeal for lack of jurisdiction.

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.