All in the Family

Here’s a recent appeals court decision in an employee disciplinary demotion case that is of note mainly because it involved a charge of nepotism—a violation that one does not encounter every day in the Federal workplace. (McDavis v. Merit Systems Protection Board, CAFC No. 2011-3132 (nonprecedential), 1/25/12)

The court’s opinion contains just a few facts because the record was not really developed in the administrative appeal. The issue before the court involved the dismissal of McDavis’ appeal by the Merit System Protection Board for failure by Ms. McDavis to prosecute her appeal.

Here’s what little we do know. Ms. McDavis worked for Social Security as a Paralegal Supervisor. The agency busted her down to a nonsupervisory paralegal position based on two charges. The first was violation of the prohibition against nepotism. Apparently, Davis interviewed and recommended a relative for a job with her agency (the court’s decision does not identify the relative or the job). When questioned by the agency about the nepotism concerns, “McDavis displayed a lack of candor…about the events leading up to the … charge.” (Opinion p. 2) That led to the second charge against her.

On McDavis argued that MSPB should not have dismissed her appeal. That dismissal came about when McDavis failed—three times no less–to participate in a prehearing conference before the Administrative Judge, despite the fact that the AJ kept rescheduling it, and warned Ms. McDavis in writing that if she did not comply with his order there might be sanctions including dismissal of her appeal. (pp. 2-3)

When McDavis did not show up for the re-scheduled prehearing conference and did not submit documents required by the AJ’s order, he followed through on the threat and dismissed her appeal. (p. 3) When McDavis appealed to the full MSPB, she found no sympathy because of what the Board called her lack of “due diligence in prosecuting her appeal.” (p. 3)

The court has sided with MSPB, acknowledging that dismissal of the appeal was a severe sanction. However, in the court’s view it did not add up to abuse of discretion under the facts of the case. As the court stated, “At bottom, McDavis failed to comply with multiple Board orders.” (p. 5)

In an interesting footnote (note 1 on p. 5), the court refers to evidence McDavis tried to bring up for the first time in her court appeal that she “had difficulty accessing e-Appeal online.” However, because she did not raise this issue with the MSPB, she is out of luck. The court is “obliged to review this case based on the record below.” (p. 5)

McDavis v MSPB (2011-3132)

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

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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.

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