Federal Manager's Daily Report

A federal court has rejected an appeal of a federal employee’s firing based on an argument that the agency had subjected him to “double punishment,” among other challenges.

In a summary of the ruling from the Court of Appeals for the Federal Circuit, the MSPB said that the employee asserted that he already had been penalized on the same allegations when his agency previously had reassigned him. “The court held that the petitioner’s reassignment without a reduction in basic pay did not constitute punishment and therefore did not preclude his subsequent removal,” the MSPB said.

The court also found that the agency did not violate his due process rights by changing the deciding official since the first official never reached a final decision regarding the penalty. Further, the deciding official did not improperly consider any new and material evidence, it held.

The court did express concern about the delay–more than three years–between the conduct involved and the agency’s decision to remove the employee, MSPB said, but “held that such a delay could justify reversing the action only if it was shown to be prejudicial.” Because he had not alleged prejudice before the arbitrator, he could not do so for the first time on appeal, it said.