Will an Agency Need a Crystal Ball In Order to Win a Removal Case in the Future?

The appeals court has sent an appeal back to the arbitrator with instructions to consider evidence that came up after the personnel action was taken in reaching his final decision on appropriateness of the removal penalty.

Appeals courts occasionally overturn arbitrator’s decisions in federal personnel cases. In Norris v. Securities and Exchange Commission, CAFC No. 2011-3129 (4/10/12), the Federal Circuit has held that the arbitrator committed error by not considering new “post removal” evidence as to the “reasonableness” of the penalty, and sent the case back to the arbitrator for further consideration.

Norris was an SEC Trial Attorney who ran into trouble for “exercising poor judgment” and misusing official email, a first offense that resulted in a 1-day suspension. Then, again using official email and identifying himself as an SEC trial counsel, Norris sent a series of “antagonistic” emails to a businessman (Mark Cuban, owner of the Dallas Mavericks basketball team). This resulted in a 14-day suspension. (Opinion p. 2)

The next time—again using his title and official agency email—Norris sent several emails, first to the Washington Post newspaper expressing political views, then to supervisors and co-workers demeaning “incompetent” support staff, and finally to an outside party and his counsel in violation of SEC policies. (pp. 2-3)

This third time around the SEC removed Norris. The deciding official cited her “lost confidence that [Norris] could effectively perform [his] assigned duties.” (p. 3) Norris’ union sent the case to arbitration where the main focus was whether the penalty was reasonable.

At the arbitration hearing Norris brought up (as he had in responding to the notice of proposed removal) that the penalty should be mitigated in light of the multiple stresses on him stemming from his daughter’s Asperberger’s Disorder, his wife becoming disabled, and his own adult attention deficit hyperactivity disorder. He presented new evidence in the form of testimony by a treating physician that Norris was improving with a new treatment regime and that the bad behavior should be prevented by this regime in the future.

The arbitrator affirmed Norris’ removal. In doing so the arbitrator cited the question as to Norris’ potential for rehabilitation as  the “most difficult” consideration for him, stating “If sympathy were the sole deciding factor…the arbitrator would conclude that grievant should be reinstated to his former position.” (p. 6) He indicated in his ruling that he could not consider the “post-removal” events as testified to by Norris’ doctor. The arbitrator explained that the test was whether the agency’s decision to remove Norris was reasonable based upon the facts at the time of the decision, and the arbitrator concluded that it was. (p. 6)

Norris took his case to court. The court found that the arbitrator committed error when he concluded that “post-removal…good conduct is not relevant to the issue…” of reasonableness of the penalty. (p. 16) The court has now sent the case back to the arbitrator and instructed him to consider the post-removal evidence. However, at the same time, the court specifically “expresses no opinion as to the weight to be given such mitigating evidence.” (p. 16)

Norris gets another shot at overturning his removal, and agencies are left to wonder if they have to anticipate future facts when they make discipline decisions in order to win appeals.

Norris v. SEC 11-3129

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.