Not MSPB Error, But “Garden-Variety” Neglect By Appellant

An attorney who prioritized her summer vacation over preparing for her MSPB appeal hearing has to live with the consequences.

A legal instructor at the Immigration and Customs Enforcement (ICE) Academy in Charleston, South Carolina, appealed the agency’s decision to eliminate her position and reassign her to Charlotte, NC, arguing that this was done in retaliation for her whistleblowing. (Hiller v Department of Homeland Security (CAFC No. 2018-1244 (nonprecedential) 4/22/19))

As delineated in the court’s opinion, Ms. Hiller worked full time in the ICE Office of Training and Development. Along with ten others she taught basic legal classes to law enforcement officers. In 2011 she blew the whistle with the agency Inspector General and the Office of Special Counsel (OSC) concerning safety issues and misuse of government vehicles. Several months later management of Ms. Hiller’s organization was transitioned to the Training Division of the Office of Principal Legal Advisor (OPLA). The new management conducted an assessment of workload, resulting in a decision to cut the number of attorney-instructors. OPLA notified Ms. Hiller that her position was being eliminated and that she was being reassigned to Charlotte, leading her to file a complaint with the OSC alleging the reassignment was in retaliation for her whistleblowing. OSC ended its investigation of her allegations some four years later in 2016. Ms. Hiller appealed to the Merit Systems Protection Board (MSPB). (Opinion pp. 2-3)

The Administrative Judge (AJ) ordered on May 12, 2017 that the deadline for pre-hearing submissions would be July 24 and the hearing was scheduled for August 9-10, with a detailed order to follow concerning pre-hearing submissions deadlines. That order was issued July 19 and provided a deadline of July 24 for witness and exhibits lists, and other required items. Since Ms. Hiller was on vacation, she moved to extend the deadline and continue the hearing. Otherwise she would only have five days to prepare her submissions as ordered. (p. 4)

The AJ gave her some relief by extending the deadline until August 4; however, he left the dates for the hearing. Ms. Hiller missed the deadline for getting in her witness list and request for subpoenas leading the AJ to rule that she could only call herself as a witness. She nevertheless submitted her witness list several days beyond the deadline and moved that the AJ accept her list since she had “good cause” for missing the deadline. Unmoved, the AJ found “nothing prevented the appellant from timely submitting a witness list or subpoena request but her own garden-variety neglect,” and he refused to accept her late filings. (p. 4)

After the hearing the AJ found that Ms. Hiller proved she had engaged in protected whistleblowing and that contributed to her reassignment; however, the agency met its burden to prove that it would have taken the same action even if she had not engaged in whistleblowing. Therefore, he denied Hiller’s appeal. (p. 5)

Before the federal appeals court, Ms. Hiller argued that by denying the opportunity for her to call witnesses the AJ abused his discretion thus depriving her of the right to a fair hearing in spite of her “eminently reasonable request” for more time.  (p. 6)

The appeals court did not buy this, pointing out that Ms. Hiller knew as early as May 12 that the pre-hearing submissions would be due on July 24 and she also knew “well before the deadline” that this fell during her planned vacation week. As the court summarized, “In short, Ms. Hiller herself created the circumstances under which she missed the filing deadline for her witness list.” (p. 6)

As for Ms. Hiller’s argument that the AJ erred when he ruled against her on the merits, the court was not sympathetic. The facts proved that the number of attorney instructors was not justified by the training load and Ms. Hiller’s contention that she could have taught other subjects did not ring true where she had refused previous attempts to diversify the training that she handled. Further, the AJ did not err in finding that the agency would have taken the same action notwithstanding Ms. Hiller’s whistleblowing. OPLA officials involved in the decision testified that they did not know about her whistleblowing activity and therefore denied it had any bearing on their decision. The facts demonstrated that Hiller was not the only one affected by the decision to reallocate the caseload, and many others voluntarily transferred to other positions. (p. 11)

In short, Ms. Hiller has lost her court appeal and the agency decision to reassign her stands.

Hiller v. DHS 2018-1244

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.