FEDweek

Federal Legal Corner: Reinstatement after Due Process Denial

On June 13, 2014, the Merit Systems Protection Board issued a nonprecedential decision in Halfacre v. Dept. of Homeland Security, MSPB Docket No. DC-0752-12-0626-I-1. Reversing the administrative judge’s decision, the MSPB found that Halfacre was denied Constitutional due process in her removal, rendering the removal fatally legally defective. Accordingly, the MSPB reversed the removal of Halfacre and reinstated her to duty with back pay.

In 2012, Halfacre received a proposed removal on charges of alleged lack of candor and alleged misuse of government equipment.The proposed removal came after an agency internal investigation. During this investigation, Halfacre and another witness provided similar affidavits on certain incidents which were being investigated. The deciding official for the proposed removal testified at a hearing that she considered this similarity in statements to be an aggravating factor in the case, as she considered the similarity to be evidence that Halfacre and the other witness had coordinated their testimony in an attempt to deliberately mislead the agency. However, the deciding official did not notify Halfacre that she was taking this consideration into account, and it was not raised in the proposed removal; and so Halfacre did not have a chance to respond to this concern at the agency level. The agency removed Halfacre, and the MSPB’s administrative judge upheld the removal. Halfacre then filed a petition for review with the full Board.

On appeal, the MSPB unanimously reversed the removal decision. Under clear precedent from the MSPB and its chief reviewing court, the U.S. Court of Appeals for the Federal Circuit, federal employees are entitled to notice of the charges against them (including all aggravating factors) and a chance to respond before any adverse action is implemented–a right which rises to the level of 5th Amendment due process. The MSPB found that the agency’s failure to notify Halfacre of this undisclosed aggravating factor and its failure to give her the chance to respond to the issue rendered her removal legally flawed.Thus, the Board ordered the removal reversed with full back pay, with the opportunity to apply for attorneys’ fees and costs.

Halfacre was represented by Passman & Kaplan Founding Principal Joseph V. Kaplan and Passman& Kaplan Senior Associate Adria S. Zeldin.

* This information is provided by the attorneys at Passman& Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman& Kaplan, P.C., go to http://www.passmanandkaplan.com.

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.passmanandkaplan.com. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.