Volunteer Jury Duty Leads to Firing

Recently the appeals court took up round three in the twelve-year battle between a Navy employee and the agency over her actions in volunteering to serve on a California court grand jury for two one-year stints, thus delaying her required transfer from California to Washington, DC. The most recent decision can be found at Hall v. Merit Systems Protection Board CAFC No. 2013-3151 (nonprecedential) 3/31/14.

Readers may recall our earlier write up on what the Federal Circuit Court of Appeals now calls their “Hall II” decision. Detailed facts can be found in that earlier article and in the court’s opinions in this case. See Call It “Extreme Jury Duty?.

To recap briefly, Hall agreed to transfer to D.C., was granted an extension for several months based on poor health of her mother, and then volunteered with a local court to serve two back-to-back one-year terms on the grand jury. She contended she could not therefore be transferred to D.C. and that the Navy had to pay her salary by way of  court leave for the full two-year grand jury stint. Navy ordered her to report to DC immediately upon expiration of her first grand jury term and to not sign up for additional terms on the grand jury. When she did just that, however, Navy put her on an AWOL status, withheld her pay, and removed her.

Now we have Hall III where she challenges the decision of the MSPB dismissing her removal appeal as untimely filed.  (Opinion p. 2) Let’s back up a bit to understand the latest round.

Hall originally appealed to the MSPB in late 2004 challenging the Navy’s decision to place her on AWOL during her second year term on the local grand jury for which she had volunteered despite her agency’s order not to. The MSPB dismissed this appeal since a decision to place an employee on AWOL is not something the Board had jurisdiction to entertain on appeal. (Hall’s separate action—a complaint to the Office of Special Counsel—was unsuccessful. The OSC found that paid leave is not mandated when the federal employee volunteers for the jury duty; therefore Navy did not violate the law by placing her on paid leave. p. 3)

While Navy proceeded to remove Ms. Hall for failure to report as directed, disobeying a proper supervisory order and AWOL, she appealed to the Office of Personnel Management asking for its determination that she was entitled to court leave for voluntary jury duty. Once the removal was effected, Hall again appealed to the MSPB to challenge it. Hall then asked the Administrative Judge to stay the appeal until “at least 10 days after [OPM] reaches a final decision on Appellant’s claim relating to court leave.” (p. 4)

The AJ dismissed Hall’s appeal without prejudice and ordered her to re-file the appeal within 40 days of OPM’s ruling or no later than December 2, 2005. (p. 4)

OPM could not meet the deadline and sent a letter to that effect to Navy, Ms. Hall and the MSPB. On January 12, 2006, OPM issued its ruling denying Hall’s request for court leave under the circumstance of her volunteering to serve on the grand jury. OPM made clear this was the end of their involvement and her next recourse would be to file suit in a federal court. Ms. Hall did just that in April 2009, more than three years after OPM’s decision. She took her case to the claims court and asked for back pay for her pre-removal AWOL and back pay and reinstatement in connection with her removal. However she did NOT re-file her removal appeal with the MSPB.

Ms. Hall’s efforts were then centered on the claims court and the “Hall II” appeal to the Federal Circuit. Eventually in that earlier case the appeals court bounced the pre-removal pay claim to the claims court, holding that court leave applies to a grand juror who voluntarily applied to serve and was then “summoned” by the court for that service. As for the post-removal back pay and reinstatement claims the appeals court had no problem with the dismissal of those claims, “stating that ‘[t]he issue has already been decided by this court’ in Hall I. (citation omitted; p. 7)

Ms. Hall then refilled her appeal of the removal with MSPB.  The AJ dismissed Hall’s appeal as untimely, concluding that Ms. Hall had been required to re-file no later than December 2, 2005 per his “specific, clearly-worded instructions.” (p.8)

Hall went back to the appeals court in what we can call “Hall III.”

Noting MSPB’s “broad discretion,” in these matters, the court concludes the agency did not abuse that discretion under the circumstances. (p. 11) The court points out that its earlier decision had made clear that the claims court had no jurisdiction over her removal and related back pay claim and that only MSPB could hear those claims, “Thus, as of September 1, 2010, Ms. Hall was on notice that she would have to seek redress for her reinstatement and post-removal back pay claims exclusively through the MSPB.” (p. 12)  She waited until May 24, 2012 to seek to reinstate her MSPB appeal, an “extensive delay.” (p. 15)

In short, Ms. Hall has no appeal to the MSPB this late in the game.  This has been quite a sojourn considering this whole thing started in mid 2002 when Navy initially ordered Hall to move to D.C. (p. 2)

Hall v. MSPB (2013-3151)

© 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.

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