Federal Circuit Reverses MSPB on Inadequate Penalty Analysis


In a recent decision of the U.S. Court of Appeals for the Federal Circuit, the court of appeals reversed an MSPB’s Douglas factor analysis that upheld the removal of a Navy Engineer. Although the court of appeals decision is designated non-precedential, take heed.

The case is Bal v. Department of the Navy.  In Bal, a Materials Engineer was fired from the Department of the Navy for being absent without leave and falsifying time records.  He appealed to the MSPB, conceding the conduct but challenging the penalty of removal as unreasonable.  The MSPB upheld his removal.  Bal then appealed the Board decision to the Federal Circuit.

On March 30, 2018, in a non-precedential decision, the Federal Circuit vacated the Board’s decision and remanded the case to the Board to properly consider evidence relevant to what the court viewed to be mitigating Douglas factors. Specifically, the court of appeals found the Board lacked any analysis on several Douglas factors.  First, the court found the Board sustained Bal’s removal “without any analysis” of Bal’s medical evidence of depression as a mitigating factor under Douglas factor 11.  The court next turned to Douglas factor 10, which considers the potential for rehabilitation, and found “the Board completely ignored Douglas factor ten ….”  And last, the court found that the Board’s decision on Douglas factor 7 (consistency of the penalty) and factor 12 (alternative sanctions) contained “no analysis” of either factor.  In sum, the court held that the Board failed at is most basic obligation to consider, weigh, and address relevant evidence presented by the appellant.

Interestingly, last year in June 2017, in a precedential decision, Tartaglia v. Department of Veterans Affairs, the court of appeals also vacated and remanded a Board decision based on what it held was a flawed Douglas factor analysis.  That’s two cases in 9 months in which the court of appeals dug deep into the Board’s Douglas factor analysis and actually reversed Board decisions that had upheld removal penalties. In neither case did the court of appeals dictate the penalty to which the Board should have mitigated the removal penalty.  But in both cases, the court of appeals strongly voiced that the record before the MSPB had a plethora of mitigating evidence ignored or mistreated by the Board that should have lead the Board to question the penalty of removal.

Two cases in 9 nine months reversing the Board on its Douglas factors analysis in favor of the employee?  That seems noteworthy.




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Shaw Bransford & Roth provides legal representation on a wide range of employment and federal employment law issues. For more information visit us at: http://www.shawbransford.com

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