U.S. Merit Systems Protection Board 
Case Report for February 8, 2013

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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.


Petitioner:  Special Counsel
Respondents:  Norman Jackson and State of South Carolina
Decision Number:  2013 MSPB 10
Docket Number:  CB-1216-11-0016-T-1
Issuance Date:  February 1, 2013
Appeal Type:  Disciplinary Action - Hatch Act

Special Counsel Actions - Hatch Act - Summary Adjudication

    The respondents petitioned for review of an initial decision issued by an administrative law judge that granted the Special Counsel's motion for summary adjudication and ordered the state agency to remove Jackson from his position.  Jackson was employed by a state agency engaged in programs financed, in whole or in part, by federal funds.  Despite advice from the Special Counsel that doing so would violate the Hatch Act, Jackson was a candidate in an election for a seat on a county council.  The Special Counsel filed a complaint with the Board charging Jackson with violating the Hatch Act in which it requested Jackson's removal.  The administrative law judge granted the Special Counsels motion for summary adjudication, finding that there were no material facts in dispute, and ordered Jackson's removal from his position with the state agency.  In so ruling, the administrative law judge did not address Jackson's constitutional claims.  

Holdings:  The Board vacated the initial decision and remanded the case to the administrative law judge for further adjudication:

1.  The administrative law judge erred in granting the Special Counsel's motion for summary adjudication.  
In granting the Special Counsel's motion for summary adjudication, the administrative law judge relied on case law supporting such action in federal Hatch Act cases.  This case was governed by 5 U.S.C. 1515, which provides that, in cases involving state or local government employees,  the employee is "entitled to appear with counsel at the hearing . . . ."   

2.  The administrative law judge erred in failing to address Jackson's claim that the Special Counsel violated his constitutional rights to due process and equal protection.  Although the Board has held that it lacks authority to adjudicate the constitutionality of statutes, it has also held that it has authority to adjudicate a constitutional challenge to an agency's application of a statute.  

Appellant:  Quincy D. Hall
Agency:  Department of Transportation
Decision Number:  2013 MSPB 11
Docket Number:  DA-0752-12-0006-I-1
Issuance Date:  February 4, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Affirmative Defenses - Required Notice

    The appellant petitioned for review of an initial decision that affirmed his removal from his position as an Air Traffic Control Specialist for failure to successfully complete required training, which was a condition for his continued employment.  On appeal to the Board, the appellant alleged, among other things, that the agency retaliated against him for EEO activity, that the agency violated provisions of a collective bargaining agreeement, committed harmful procedural error in failing to reassign him to a lower level facility, and violated his due process rights.  In affirming the removal action, the administrative judge found that the agency proved its charge, that a nexus existed between the charge and the efficiency of the service, and that the penalty was reasonable.

Holdings:  The Board affirmed the administrative judge's finding that the agency proved its charge, but vacated the judge's findings regarding nexus and penalty, and remanded the appeal to the regional office for adjudication of these matters and the appellant's affirmative defenses:

1.  Judges must apprise appellants of the applicable burdens of proving a particular affirmative defense, as well as the kind of evidence required to meet those burdens.  When an appellant raises affirmative defenses, the judge must address those defenses in any close of record order or prehearing conference summary and order.  If a judge disposes of an affirmative defense in a close of the record conference, he must identify the affirmative defense, explain that the Board will no longer consider it when deciding the appeal, and give the appellant an opportunity to object.

2.  Here, the appellant clearly alleged retaliation for protected EEO activity, violation of a collective bargaining agreeement, harmful procedural error, and violation of his due process rights.  The judge at no point discussed the appellant's affirmative defenses and did not give the required notice regarding them.  The record does not indicate that the appellant withdrew or abandoned his affirmative defenses.  A remand is necessary to give the required notice and adjudicate the appellant's affirmative defenses.

3.  Under these circumstances, it would be premature for the Board to consider whether there is a nexus between the charged conduct and the efficiency of the service and whether the agency-imposed penalty is reasonable.

     In a separate opinion, Member Robbins stated that he agreed with his colleagues the appeal should be remanded, but "for consideration of just one issue, and I would frame that issue differently from the way my colleagues frame it."  

1.  In the close of the record order, the judge did not identify the appellant's argument concerning his request for an additional extension of time to respond to the notice of proposed removal.  This was not a claim of a due process violation; it was a claim of harmful procedural error alleging that the agency did not follow its own rules.  

2.  The appellant's remaining arguments should be disposed of at this stage, not on remand.

a.  Under Radcliffe v. Department of Transportation, 57 M.S.P.R. 237 (1993), where, as here, successful completion of training is a mandatory condition of employment, the Board has no power to mitigate a removal for failing training unless an agency policy requires reassignment.  The record supports the judge's finding that agency policy and the collective bargaining agreeement permitted the agency to reassign the appellant to another facility but did not require it.

b.  It is undisputed that the appellant was unsuccessful when he previously worked in a lower-level facility and that the agency issued a decision to terminate him during his probationary period on that basis.  The appellant's contention that he was wrongfully denied reassignment is an unpersuasive argument for mitigation that does not raise a due process issue.

c.  Even if the appellant's last argument on review is true -- that the agency erroneously relied on uncharged prior misconduct -- it does not change the outcome under Radcliffe because the appellant's failure to successfully complete mandatory training and his previous unsuccessful stint at a lower-level facility fully support the deciding official's determination to remove him.  The Board could not mitigate the penalty even if the deciding official's penalty selection was unworthy of deference.

3.  The Board need not address the appellant's claims in his initial submission that the agency removed him in retaliation for protected EEO activity and that the notice of proposed removal violated his due process rights because it was insufficiently detailed.  The appellant did not object to the judge's omission of these issues; he objected that the judge erroneously omitted two different issues.  The appellant, who has been represented by an attorney throughout this proceeding, never attempted to introduce evidence in support of these claims.  While there may be cases in which it is appropriate for the Board to raise non-jurisdictional issues sua sponte, this is not one of them.  The Board's decison in Wynn is aimed at ensuring that a party who may be confused by the Board's processes is not incorrectly deemed to have abandoned an affirmative defense that he actually intends to pursue.  In this case, all indications are that the appellant does not intend to pursue his retaliation and inadequate notice claims.  


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

Moltzen v. Department of Labor, No. 2012-3145 (Feb. 6, 2013) (MSPB Docket No. SF-0432-10-0994-I-1) (affirming the Board's decision, which affirmed Moltzen's removal for unacceptable performance)

Cooper v. Department of Veterans Affairs, No. 2012-3112 (Feb. 7, 2013) (MSPB Docket No. NY-0752-11-0003-I-1) (affirming the Board's decision, which affirmed Cooper's removal for misconduct)


     In a Federal Register notice issued on February 8, 2013, 78  Fed. Reg. 9431, the Merit Systems Protection Board announced the opportunity to file amicus briefs in the matter of Thomas F. Day v. Department of Homeland Security, MSPB Docket Number SF-1221-12-0528-W-1, currently pending before the Board on interlocutory appeal. The administrative judge certified for interlocutory review the question of whether the provisions of the Whistleblower Protection Enhancement Act of 2012 (WPEA), 112 Public Law 199, may be applied retroactively to pending cases involving conduct occurring prior to its effective date.  Briefs must be received by the Clerk of the Board on or before March 1, 2013, and may be submitted in electronic form as attachments to electronic mail addressed to the Clerk of the Board, [email protected]  

     Of particular relevance in Day is the question of the retroactive effect of section 101(b)(2)(B) of the WPEA, which provides in relevant part that a disclosure made to an alleged wrongdoer or during an employee's normal course of duties is not excluded from protection against reprisal under 5 U.S.C. 2302(b)(8). In Huffman v. Office of Personnel Management, 263 F.3d 1341, 1352 (Fed. Cir. 2001), the U.S. Court of Appeals for the Federal Circuit held that a disclosure made as part of an employee's normal duties, and through normal channels, was not protected under the Whistleblower Protection Act (WPA). The court in Huffman further held that a complaint made to a supervisor regarding the supervisor's own alleged wrongdoing was not protected under the WPA. Id. at 1350. The Board has applied the holdings in Huffman as binding precedent. See, e.g., Stiles v. Department of Homeland Security, 116 M.S.P.R. 263, 15 (2011). Therefore, the Board must determine in Day whether to apply the WPEA standard or the Huffman standard in determining whether disclosures that occurred prior to the effective date of the WPEA are entitled to protection. Information about the Day case and the WPEA may be found on the Board's Web site at www.mspb.gov/SignificantCases.  

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