In the past year, the U.S. Merit Systems Protection Board (MSPB) has issued several decisions reversing an agency’s adverse action against an employee because the agency failed to follow its own adverse action procedures. Not every instance in which an agency fails to follow its own action will result in reversal. Rather, those instances in which the failure to follow the internal agency procedure results in “harmful error.”
Most if not all agencies have internal procedures for taking an adverse action. Those procedures mostly mirror and then build upon the governmentwide statutes and regulations proscribing the taking of an adverse action against a federal employee. For those in the know, the statutes are at Chapter 75 (misconduct) and Chapter 43 (performance) of Title 5 of the U.S. Code and Office of Personnel Management’s implementing regulations. Agency internal procedures will sometimes identify the process by which a proposed disciplinary action is taken, including designating the officials who have the delegated authority to propose and/or impose such actions, set forth time limits and include a table of penalties. Employees subject to a proposed adverse action usually become familiar with the agency’s internal procedures, and can defend the taking of the action by claiming (and proving) that the agency did not follow the procedures to his or her detriment.
Having internal agency procedures that implement Chapters 43 and 75 is a good idea. It provides a means for uniformity in the taking of adverse personnel actions, and with uniformity provides a degree of certainty to employees of what they can expect if they become subject to an adverse personnel action proceeding. It also reduces claims of favoritism and discrimination. In sum, it creates structure in the employer-employee relationship for difficult situations. The problem for agencies is when they deviate from their own procedures. Federal employees are quick to find and point out procedural defects with the taking of a personnel action, issuance of a rating, or granting of leave. But not all procedural defects are fatal to the taking of an action. When an agency deviates from internal agency procedures, because the procedures stand in the way of taking an action management wants taken, you’ll find yourself in trouble.
The provision of the law that will invalidate the adverse action is at 5 U.S.C. section 7701(c)(2). The provision states that the MSPB must uphold an agency action unless “the employee or applicant for employment (A) shows harmful error in the application of the agency’s procedures in arriving at such decision[.]” That’s the harmful error rule. Under this statutory provision, the MSPB has regularly held that reversal of an agency’s action is therefore required where an appellant establishes that the agency committed a procedural error that likely had a harmful effect on the outcome of the case before the agency. What kinds of errors have a harmful effect on the outcome of the case? Those where the record shows that it was likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error. Per the MSPB, an agency is required to follow its own rules, regardless of whether those rules go beyond the requirements of governmentwide statutes and regulations.
In the last year, the MSPB has reversed several adverse personnel actions based on a finding of harmful error. We saw that last year in Schnedar v. Department of the Air Force, in which the Air Force had indefinitely suspended an employee whose security clearance had been revoked, but who was still in the middle of the process appealing the revocation. The problem for the Air Fforce was that DoD regulations prohibited the taking of an administrative action against an individual who was in the process of challenging a security clearance revocation. Last month, the Board reversed the suspensions of two aAssistant U.S.United States aAttorneys who prosecuted Senator Ted Stevens for failing to report gifts and liabilities on his financial disclosure statements, and who were found by an internal DOJ investigation to have engaged in professional misconduct by withholding evidence from the defendant. The MSPB found that DOJ had not complied with its own internal procedures for taking disciplinary actions by removing the individual assigned to be the proposing official and then designating someone else who was not authorized by the procedures to propose the actions, when DOJ management learned that the original proposing official did not believe the evidence against the two AUSA’s supported the taking of adverse actions.
What the harmful error rule shows us is not to jeopardize a personnel action or the credibility of management by trying to obtain a result that would not be attained by following the rules.
Debra L. Roth is a partner at the law firm Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to firstname.lastname@example.org.
Even where the “error” results in the employee’s death, MSPB (with fed circuit stamp) fails to correct it.
MSPB will not address the error, particularly when a non-probationary employee is falsely treated as probationary due to IRS management’s so-called “error” of removing the tenure 1 status code/due process rights from a career tenured employee’s SF-50 upon their reinstatement to same IRS job. This is a competitive service employee charged with no offense whatsoever, with career tenure (3 continuous years without a 30 day break in same job) and with a lifetime of nothing but excellent performance appraisals. IRS promises that their tenure 1 status (career tenure in same job) will be credited to the new probationary period and that their status as an “employee” with full due process rights will be honored upon reinstatement to same job, but they fail to do so for some of these employees. Victims of same error at other agencies are able to get this error corrected in a matter of minutes, but IRS employees must go through a decade of appeals with no chance of a hearing. When the employee chooses to have a hearing at MSPB (after their minimum 30 day warning and chance to respond is denied (NTEU representation ends since incredibly NTEU stops representing a member as soon as the member is terminated without following proper procedure and minimum 30 day warning), the judge claims he can’t hear the case since he is requiring the employee to meet probationary criteria due to this harmful procedural “error.” So even while the judge acknowledges that the termination was obviously not for performance reasons (case screams retaliation, nepotism and discrimination in addition to the files containing the wrong employee info which prove the confused mental state of the manager and raises the question of his drug addiction, etc.as he was previously removed from management for similar abuses.), the judge claims the victim cannot have a hearing and tells the victim her only option is the unfair (IRS management dictated) settlement in which the victim loses job, salary, retirement, and her life (sudden attack while victim is on vacation caring for children puts victim into the hospital with shock leading to imminent death). MSPB almost never rules in favor of victims of agency abuse, and victims should not waste money and years of their lives in a hopeless quest for justice at MSPB.