Employees or ex-employees who appeal to court to challenge the MSPB do not often make it very far with their arguments. Here’s a case where the employee managed to get another day in court before the Board thanks to the court tossing the case back. (Brown v. Department of Defense (CAFC No. 2015-3036 (nonprecedential) 5/9/16))
Damon Brown had worked for DFAS for about 16 years when the agency changed the security designation of his accounting technician position to “Non-Critical Sensitive.” Brown duly submitted the required background questionnaire (SF85P) and a little over a year after the change in his classification he received notice (an “SOR” or Statement of Reasons”) that his eligibility for a sensitive position would be denied based on reports of several outstanding debts. This triggered a process whereby Brown could respond through an “Agency Security Director.” The notice also warned Brown that failure to respond by the due date would make the decision final and his appeal rights would be forfeited. The detailed instructions for responding to the SOR indicated that Brown must personally submit and sign the response. (p. 2)
Brown was told when and to whom to send his response. Some six weeks before Brown’s response was due, an attorney sent in a letter on his behalf. The bankruptcy attorney explained details of Brown’s debts and his efforts to settle them. The attorney offered to provide any additional information needed by the agency. Mr. Brown did not sign the attorney’s letter.
The agency response official did nothing until the response deadline came and went. He then called Brown to tell him that he failed to submit a timely response. He explained that Brown could try to send a letter explaining why his response was delayed and seeking permission to respond even though the deadline had passed. Brown followed this advice; however, the agency made a final decision denying Brown eligibility to serve in sensitive positions, and citing his failure to respond by the deadline. (p. 3)
In other words, the agency ignored the bankruptcy attorney’s response on Brown’s behalf.
Once no longer eligible, Brown could not serve in his position any longer. The agency removed him on that basis. Brown appealed to the MSPB, which ruled it did not have jurisdiction over the denial of eligibility decision, his due process rights were not violated, and removal was upheld. (p. 4)
Those readers familiar with these kinds of cases know that the employee is usually pretty much out of luck. No “clearance” = no job eligibility = removal = rubber stamp by MSPB and the court.
However, Mr. Brown beat the odds in his case. He argued that by not forwarding the bankruptcy attorney’s letter to the deciding official, the agency committed harmful error. The agency argued it had no affirmative duty to help Brown with his appeal. He is the one who failed to send a personally signed response, so this is on him, not the agency.
The court dug into what the so-called agency liaison official assigned to Brown’s case was supposed to have done. He was supposed to deliver the SOR and get Brown to acknowledge receipt (done); find out if there will be a response filed (done); ensure Brown knew the consequences of making the deadline for response (arguably done); explain how to get needed time extension (done—after the deadline). The agency argued the official was not required to do more than this. (p. 6)
Not so, says the court: “This is incorrect. Under a fair reading of the ….regulation, a point of contact is required to facilitate an employee’s response. We conclude that, in the circumstances of this case, [the agency contact] did not comply with the requisite duties, resulting in Mr. Brown’s loss of his ability to appeal.” (p. 6)
The court clearly did not like the fact that the liaison pretty much “discarded or ignored” the bankruptcy attorney’s letter. …. He “had a responsibility to at least contact Mr. Brown to discuss the letter. If it had been meant as a response, Mr. Brown would have had the opportunity to correct any deficiencies…. [Waiting] at least six weeks before he contacted Mr. Brown after the deadline had passed” was not appropriate. (pp. 6-7)
In short, this was “error.” The court goes on to conclude that “no reasonable factfinder would find that Mr. Brown has not met his burden in showing that … failure to forward [the] letter or otherwise contact Mr. Brown constituted harmful procedural error. “ (p. 8)
The court has sent the case back to the Board to try again.
