Harmful Procedural Error by Agency

The Merit Systems Protection Board recently affirmed an initial decision which reversed on the ground of harmful procedural error the 40- and 15-day suspensions of two Assistant U.S. Attorneys for alleged professional misconduct; 2015 MSPB 1, Docket No. CB-0752-15-0228-I-1 (Jan. 2, 2015).The Board found that the agency committed harmful procedural error by violating its own procedures on discipline which, had they been followed, would likely have resulted in the appellants receiving lesser or no discipline.

The appellants were prosecutors in the 2008 federal criminal prosecution of a U.S. Senator for failing to report gifts and liabilities on his financial disclosure statements.After a jury convicted the Senator, the government moved to vacate the conviction because its prosecution team had failed to disclose information to which the defense was constitutionally entitled.The agency’s Office of Professional Responsibility (OPR) investigated the appellants’ conduct and issued a Report of Investigation (ROI) concluding that they had recklessly committed professional misconduct in handling some of this information.

The agency imposed a policy which required that, where the OPR alleges attorney professional misconduct, an attorney in the agency’s Professional Misconduct Review Unit (PMRU) would decide whether disciplinary action is warranted and would serve as the proposing official once the allegation was referred to him or her by the PMRU Chief.The Board found that no express provision or any reasonable reading of the procedures allowed for anyone other than a PMRU attorney to serve as the proposing official.According to Board precedent, where an agency imposes a policy of proposing and issuing employee discipline, if must follow those procedures.

The PMRU Chief referred the ROI alleging misconduct to a PMRU attorney who issued an 80-page memorandum explaining why he did not believe OPR’s findings were supported by the evidence or law.However, the PMRU Chief disagreed with the PMRU attorney’s memorandum and requested of a Deputy Attorney General that he [the PMRU Chief] be specifically appointed as the proposing official for the appellants.He then proposed the suspensions that formed the basis of the appellant’s appeals.

The Board found that the PMRU attorney’s memorandum was tantamount to a decision to propose no discipline, rejecting the agency’s argument that the memorandum was only an internal recommendation.It likewise found that, given the agency’s policy on proposing and issuing discipline involving attorney conduct, the agency would have been bound by the PMRU attorney’s proposal to issue no discipline or lesser discipline.The Board distinguished the case from Bross v. Department of Commerce, 389 F.3d 1212 (Fed. Cir. 2004), in which the court found that the agency did not commit harmful procedural error when it replaced the original proposing official because he had not yet reached a decision as to the appropriate penalty at the point he was removed from this role.According to the Board, the PMRU attorney’s memorandum contained a thorough and complete recommendation that no disciplinary action was warranted.

In closing, the Board noted that “it may seem at first glance to defy common sense” not to subject the appellants to discipline for their actions which were characterized as “reckless” and publicly compromising the justice system with the consequence of interfering with the electoral process.However, because of the agency’s harmful procedural error in violating its own policies on discipline, the Board was bound to uphold the initial decision.

* This information is provided by the attorneys at Passman & Kaplan, P.C.