U.S. Merit Systems Protection Board 
Case Report for October 12, 2012

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Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.

BOARD DECISIONS

Appellant:  Noel D. Hodges
Agency:  United States Postal Service
Decision Number:  2012 MSPB 116
Docket Number:  SF-0752-11-0270-I-1
Issuance Date:  October 11, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Reduction in Grade

Constitutional Issues - Due Process

    The appellant petitioned for review of an initial decision that sustained the agency's action reducing him in grade on a charge of failure to follow instructions.  On August 25, 2010, the agency audited the appellant's station and found numerous deficiencies relating to the processing and reporting of delayed mail.  The agency conducted an investigative interview on August 31, at which the appellant was provided the opportunity to explain the findings of the audit.  On September 24, the agency issued a notice proposing the appellant's reduction in grade from EAS-22 to EAS-21 on a charge of failure to follow instructions.  The appellant submitted a written response and requested an opportunity to meet with the deciding official, but the record indicates that the deciding official did not consider the appellant's written response to the proposal notice, and did not afford him an oral response, prior to issuing a decision to effect the reduction in grade.  The appellant asserted that the failure to consider his written response and afford him an oral response constituted a denial of due process of law and/or harmful procedural error.  The administrative judge found that the agency had committed procedural error by failing to consider the appellant's written response or to allow for the requested oral reply, but that the appellant failed to show that the deciding official would have made a different decision had he reviewed the appellant's written response.  The judge also found that the appellant had been provided minimum due process of law because the deciding official had considered the explanations the appellant provided in the August 31 interview.

Holdings:  The Board reversed the agency's adverse action on the basis that it had deprived the appellant of minimum due process of law and ordered that he be restored to his original position:

1.  The appellant's written response to the proposal notice was timely filed with the agency.  
2.  The deciding official's complete failure to consider the appellant's written response to the proposal notice before issuing a decision constitutes -- in and of itself -- a violation of minimum due process of law.

a.  The Supreme Court has described the "root requirement" of the Due Process Clause as being "that an individual be given an opportunity for a hearing before he is deprived of any significant property interest," which requires a "meaningful opportunity to invoke the discretion of the decisionmaker" before the personnel action is effected.  An employee cannot be said to have had a meaningful opportunity to present his side of the story and to invoke the discretion of the deciding official if the deciding official did not provide for an oral response to the proposal notice and did not read the employee's written response to the proposal notice before issuing his decision.

b.  That the deciding official considered the appellant's input prior to the issuance of the proposal notice does not satisfy the due process requirement that the employee have the "opportunity to present reasons, either in person or in writing, why proposed action should not be taken."  In an adverse action, there is no "proposed action" for due process purposes before an agency issues its proposal notice.  




COURT DECISIONS

The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the followings cases:

Gingery v. Department of Veterans Affairs, No. 2012-3110 (Oct. 5, 2012) (MSPB Docket No. CH-3330-09-0712-X-1) (affirming the Board's decision, which dismissed Gingery's petition for enforcement of its earlier order that provided guidelines to the agency to reconstruct the job selection process involving him)

Johnson v. Merit Systems Protection Board, No. 2012-3096 (Oct. 5, 2012) (MSPB Docket No. PH-315H-11-0386-I-1) (affirming the Board's decision, which dismissed for lack of jurisdiction an appeal of the termination of Johnson's employment during his probationary period)

Salazar v. Office of Personnel Management, No. 2012-3011 (Oct. 5, 2012) (MSPB Docket No. AT-0841-09-0517-I-3) (affirming the Board's decision, which affirmed OPM's decision deny Salazar's request for reinstatement of his retirement annuity)

Hill v. Merit Systems Protection Board, No. 2012-3093 (Oct. 9, 2012) (MSPB Docket No. AT-1221-11-0409-W-1) (affirming the Board's decision, which dismissed Hill's IRA appeal for lack of jurisdiction)

Tate v. U.S. Postal Service, No. 2012-3066 (Oct. 9, 2012) (MSPB Docket No. DA-0752-11-0123-I-1) (affirming the Board's decision, which affirmed the agency's removal action)

Jackson v. Merit Systems Protection Board, No. 2012-3098 (Oct. 9, 2012) (MSPB Docket No. DC-315H-03-0217-I-1) (affirming the Board's decision, which dismissed Jackson's petition for review as untimely filed)

Patel v. Merit Systems Protection Board, No. 2012-3113 (Oct. 10, 2012) (MSPB Docket No. CH-0353-11-0410-I-1) (affirming the Board's decision, which dismissed, for lack of jurisdiction, Patel's claim for restoration to duty following partial recovery from a compensable on-the-job injury)

Wilson v. Merit Systems Protection Board, No. 2012-3092 (Oct. 10, 2012) (MSPB Docket No. DA-0752-11-0276-I-1) (affirming the Board's decision, which sustained the agency's action terminating Wilson's employment)

Herrera v. Department of Homeland Security, No. 2012-3101 (Oct. 11, 2012) (MSPB Docket No. CB-7121-11-0025-V-1) (affirming the Board's decision, which denied Herrera’s request to review an arbitration decision that dismissed his grievance against the agency)

MSPB FEDERAL REGISTER NOTICE

     On October 12, 2012, the MSPB issued a Final Rule, 77 Fed. Reg. 62349 (link to HTML version; link to PDF version), promulgating substantial revisions to the MSPB’s adjudicatory regulations.  The revised regulatons will become effective on November 13, 2012.  Here is a link to the MSPB's Press Release announcing the action.  To assist the public in understanding what revisions are being made and why, the MSPB has posted two documents to its public website:
 
(1) a three-column table:  The first column shows the text of the regulation (or relevant portion) as it exists prior to the effective date; the second column shows the text of the regulation as revised; and the third column contains a brief description of and the reasons for the revisions, with pinpoint links to the notice of proposed rulemaking and the notice of final rulemaking where appropriate.  To assist the public in seeing exactly what revisions have been made, pertinent text is highlighted in yellow in the first two columns. 

(2) a seven-page summary of the most significant revisions to the regulations. 
     

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