Global Entry Program, and how to appeal Denials and Revocations

Today we are going to discuss U.S. Customs and Border Protection’s (CBP’s) Global Entry program. We will cover the advantages of the program, its cost, and how you can apply. We will also address potential avenues of redress  for travelers that have their membership in Global Entry program denied or revoked, including the various avenues individuals can take related to Global Entry revocation appeals and application-denial appeals.

 

What is Global Entry?

Global Entry (wiki) is a program administered by U.S. Customs and Border Protection that allows for low-risk travelers to use electronic kiosks and avoid long wait associated with clearing customs when traveling internationally. Global Entry was created by Congress and delegated to CBP for administration. The enacting statute was the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). The specific section of law that led to the establishment of the Global Entry program as it exists now is 8 U.S.C. § 1365b(k). Relevant to our discussion below regarding appeals is the fact that Congress gave DHS/CBP a great deal of discretion in the administration of this trusted traveler program.

Example of Global Entry Kiosks:

Global Entry Kiosk

U.S. Customs and Border Protection has made a big push to increase enrollment in the Global Entry Program. The program is not only beneficial to travelers but also benefits U.S. Customs and Border Protection by allowing them to pre-screen trusted travelers and focus their resources on screening unknown individuals that could present a more serious threat to national security. Below is a video produced by CBP that explains the benefits of the program in more detail.

 

What are the benefits  of Global Entry?

Global Entry is particularly valuable to regular business travelers and airline employees like pilots and other crew who travel often. Instead of waiting in long inspection lines you can skip the line and “self-process” using an electronic Global Entry kiosk. Depending on the lines and traveler flow at each airport, this can save you hours of time each time you travel. Accordingly, if you travel often this could save tens of hours, if not days, of waiting time. Additionally, some partner countries give you expedited processing if you are a member of Global Entry.

http://www.cbp.gov/travel/trusted-traveler-programs/global-entry
Global Entry Benefits, credit CBP

Here are the list of benefits directly from CBP’s website:

  • No processing lines
  • No paperwork
  • Access to expedited entry benefits in other countries
  • Available at major U.S. airports
  • Reduced wait times
  • TSA Pre✓® Eligibility

Along with Global Entry’s core benefits (skipping the regular CBP inspection lines) the other most attractive benefit is that it qualifies you for TSA precheck which will help you breeze through domestic security lines at US airports. Accordingly, if you engage in regularly international travel it makes sense to apply for Global Entry not solely TSA Pre-Check, since Global Entry qualifies you for both programs if your application is approved.

 

How do I join Global Entry?

Global Entry is a voluntary program, no one is required to join. If you are interested in joining you have to pay a fee and go through an interview and screening process with a local U.S. Customs and Border Protection official. CBP has created an online portal called GOES “Global Online Enrollment System” (the government sure lacks creativity with its acronyms).

To apply, you create an account with GOES, pay a $100 application fee and then if your application is conditionally approved, you schedule an interview with a local CBP Officer. At this meeting you bring your documents and answer the Officer’s questions, you can also expect to be fingerprinted. If all goes well you should get a positive notification from CBP within a few months and you will be able to start using your Global Entry card.

 

What is U.S. Customs and Border Protection?

U.S. Customs and Border Protection (CBP) is a federal agency within the Department of Homeland Security that is charged with securing the nation’s borders. CBP inspects all merchandise and individuals that enter the country from abroad. These officer’s work at all the ports of entry in the United States ensuring that commerce and individuals can flow freely while still ensuring that America is protected from any security threats. More specifically, CBP Officer’s are the ones stamping passports in airports and inspecting cargo at seaports. The U.S. Border Patrol is also a competent of CBP, with its largest presence at the United States’ southern-border with Mexico.

 

What rules or regulations govern Global Entry membership?

CBP has a great deal of discretion in the administration of the Global Entry program, however, there are some regulations that provide guidance on its administration and the program’s requirements. The core regulations related to Global Entry can be found in the Department of Homeland Security’s regulations at 8 CFR § 235.12.

The regulations define the program as follows:

The Global Entry program is a voluntary international trusted traveler program consisting of an integrated passenger processing system that expedites the movement of low-risk air travelers into the United States by providing an alternate inspection process for pre-approved, pre-screened travelers. In order to participate, a person must meet the eligibility requirements specified in this section, apply in advance, undergo pre-screening by CBP, and be accepted into the program. The Global Entry program allows participants expedited entry into the United States at selected airports identified by CBP at www.globalentry.gov. Participants will be processed through the use of CBP-approved technology that will include the use of biometrics to validate identity and to perform enforcement queries.

8 CFR § 235.12(a)(emphasis added).

The regulations make clear that CBP has a great deal of leeway in determining who can and cannot join the program:

An individual is ineligible to participate in Global Entry if CBP, at its sole discretion, determines that the individual presents a potential risk for terrorism, criminality (such as smuggling), or is otherwise not a low-risk traveler. This risk determination will be based in part upon an applicant’s ability to demonstrate past compliance with laws, regulations, and policies.

8 CFR § 235.12(b)(2) (emphasis added).

 

Are Non-U.S. Citizens eligible for Global Entry membership?

Yes, Global Entry is eligible to lawful permanent residents of the United States, UK citizens, Dutch citizens, South Korean citizens, Panamanian citizens and Mexican nationals. Canadian citizens and residents may enjoy Global Entry benefits through membership in the NEXUS program. However, foreign citizens typically have to go through additional screening and may need to seek prior-approval through their country of citizenship prior to applying through the GOES online portal. For example, UK citizens must first apply, and get an access code from the UK government, prior to applying for Global Entry. You can read more about the special rules for international applicants on CBP’s website.

 

 

What can disqualify me when applying for Global Entry?

As mentioned above, CBP has a great deal of discretion in administering the Global Entry program but it specifically cites the following factors as ones that can lead to a denial:

(i) The applicant provides false or incomplete information on the application;
(ii) The applicant has been arrested for, or convicted of, any criminal offense or has pending criminal charges or outstanding warrants in any country;
(iii) The applicant has been found in violation of any customs, immigration, or agriculture regulations, procedures, or laws in any country;
(iv) The applicant is the subject of an investigation by any federal, state, or local law enforcement agency in any country;
(v) The applicant is inadmissible to the United States under applicable immigration laws or has, at any time, been granted a waiver of inadmissibility or parole;
(vi) The applicant is known or suspected of being or having been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism; or
(vii) The applicant cannot satisfy CBP of his or her low-risk status or meet other program requirements.

8 CFR § 235.12(b)(2) (emphasis added).

The last item listed, subpart vii, is very broad and could be interpreted to cover a large range of potential conduct. Ultimately, CBP is looking for travelers that do no present any suggestion that they could be a security risk. Each application is addressed individually and based on the “totality of the circumstances” in each individual’s past.

 

Why would CBP revoke my Global Entry Membership?

The regulations further provide that an existing membership can be cancelled or revoked when any of the following occurr:

(2) A Global Entry participant may be suspended or removed from the program for any of the following reasons:

(i) CBP, at its sole discretion, determines that the participant has engaged in any disqualifying activities under the Global Entry program as outlined in § 235.12(b)(2);

(ii) CBP, at its sole discretion, determines that the participant provided false information in the application and/or during the application process;

(iii) CBP, at its sole discretion, determines that the participant failed to follow the terms, conditions and requirements of the program;

(iv) CBP, at its sole discretion, determines that the participant has been arrested or convicted of a crime or otherwise no longer meets the program eligibility criteria; or

(v) CBP, at its sole discretion, determines that such action is otherwise necessary.

8 CFR § 235.12(j) (emphasis added).

Again, you’ll note that these regulations leave CBP open to exercise its discretion as it sees fit. Further, you’ll note that these rules incorporate all the criteria that would disqualify an individual as being criteria that could lead to revocation as well.

 

What can I do if my Global Entry Membership application is denied or revoked?

If your application is denied you can seek redress through three different potential avenues. The regulations provide that you can:

(k) Redress. An individual whose application is denied or whose participation is suspended or terminated has three possible methods for redress. These processes do not create or confer any legal right, privilege or benefit on the applicant or participant, and are wholly discretionary on the part of CBP. The methods of redress are:

(l) Enrollment center. The applicant/participant may contest his or her denial, suspension or removal by writing to the enrollment center where that individual’s interview was conducted. The enrollment center addresses are available at www.globalentry.gov. The letter must be received by CBP within 30 calendar days of the date provided as the date of suspension or removal. The individual should write on the envelope “Redress Request RE: Global Entry.” The letter should address any facts or conduct listed in the notification from CBP as contributing to the denial, suspension or removal and why the applicant/participant believes the reason for the action is invalid. If the applicant/participant believes that the denial, suspension or revocation was based upon inaccurate information, the individual should also include any reasonably available supporting documentation with the letter. After review, CBP will inform the individual of its redress decision. If the individual’s request for redress is successful, the individual’s eligibility to participate in Global Entry will resume immediately.

(2) DHS Traveler Redress Inquiry Program (DHS TRIP). The applicant/participant may choose to initiate the redress process through DHS TRIP. An applicant/participant seeking redress may obtain the necessary forms and information to initiate the process on the DHS TRIP Web site at www.dhs.gov/trip, or by contacting DHS TRIP by mail at the address on this Web site.

(3) Ombudsman. Applicants (including applicants who were not scheduled for an interview at an enrollment center) and participants may contest a denial, suspension or removal by writing to the CBP Trusted Traveler Ombudsman at the address listed on the Web site www.globalentry.gov.

8 CFR § 235.12(k) (emphasis added)

In plain English this means that you can challenge your revocation or denial with one of the three listed authorities: either by 1) writing the local office that conducted your initial interview; 2) using the DHS traveler redress inquiry program and; 3) contacting the CBP Trusted Traveler Ombudsman. No result is guaranteed if you appeal a denial or revocation, and the regulations make clear that no right or privilege in conferred by providing these methods of redress. Nonetheless, CBP has provided these avenues of redress to individuals in the event a revocation or denial occurs in error.

One avenue of redress is not necessarily better than the other. Ultimately, where you should seek redress will depend on the circumstances of your case and the evidence you have available to support your appeal.

 

What is the standard by which CBP adjudicates my redress (appeal) claim?

The regulations provide that when you submit your redress request you

should address any facts or conduct listed in the notification from CBP as contributing to the denial, suspension or removal and why the applicant/participant believes the reason for the action is invalid. If the applicant/participant believes that the denial, suspension or revocation was based upon inaccurate information, the individual should also include any reasonably available supporting documentation with the letter. After review, CBP will inform the individual of its redress decision. If the individual’s request for redress is successful, the individual’s eligibility to participate in Global Entry will resume immediately.

8 CFR § 235.12(l) (emphasis added).

Essentially, this paragraph can be summarized to say, any appeal needs to state clearly why the decision was made in error and provide any and all evidence showing how this decision was based on innacurate information. Specifically this means that appeals that are supported by concrete evidence will have a better chance of success that appeals that provide a conclusory statement like ‘I don’t think CBP should have denied by Global Entry application.’

 

How do I appeal a Global Entry application denial or revocation?

To appeal a denial, first you need to choose which method of redress you will seek a response from: the enrollment center, DHS TRIP, or the Ombudsman. After that you should prepare a clear statement (in the event you present it orally to the enrollment center) or written statement (for DHS TRIP/Ombudsman) outlining why the decision was reached in error. You should support any argument with evidence as to why the decision was made in error or based on inaccurate information.

 

What is the contact information for the CBP Trusted Traveler Ombudsman?

CBP Trusted Traveler Ombudsman

US Customs and Border Protection

P.O. Box 946

Williston, VT 05495

Email: CBP.cbpvc@dhs.gov

Source

 

If my appeal is unsuccessful can I sue the government or file a court case to get Global Entry membership reinstated or granted?

For your typical Global Entry denial or revocation, the quick answer is no. As discussed above DHS and CBP have a great deal of discretion in administering the Global Entry program. This is because Congress specifically granted  the Secretary of Homeland Security with the authority to determine the criteria which disqualifies an applicant or member of the program. See 8 U.S.C. § 1365b(k)(3)(E)(iii).

To illustrate how difficult a challenge to DHS’s authority is, an individual filed a federal district court case in 2011 seeking to have a federal judge order DHS to grant him program membership. The district court judge, reviewed the various allegations made by the plaintiff and ultimately concluded that given the discretionary grant to DHS it was within its rights for denying the plaintiffs membership in that case. You can view that case here if you like. Your typical bread and butter argument for an agency action, the Administrative Procedure Act, 5 U.S.C. § 501 et seq., completely failed because of the nearly unlimited discretion that was delegated to Homeland Security.

Most Global Entry denials will likely fit into the above category, in that they are based on some concrete and justifiable exclusionary criteria and any challenge is unlikely to succeed. If you have clearly violated the terms of membership or are ineligible based on past actions, like a disqualifying criminal conviction, any court challenge is likely to fail. This is not to say all challenges would be unsuccessful, certainly there could be some instances where a plaintiff could prevail, however the scenarios are limited. It is beyond the scope of this article to predict all scenarios where a court action could be successful, but a few potential examples include DHS denying membership to individuals based on their religious affiliation or some other constitutionally-protected criteria which would violate the due process or equal protection clauses of the Constitution.

Conclusion

Hopefully you found this guide helpful. At this time we are not taking on any new clients. All information provided above is for reference purposes and should not be construed as legal advice. You should consult with a licensed attorney before taking any action in your case.

Other information and updates

Update, April 13, 2017: CBP has posted a helpful FAQ related to Global Entry. If you have a question, odds are you should be able to find an answer in this article or on CBP’s FAQ.

 

Update as of February 2, 2017. The President issued an executive order on January 27, 2017, titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” That EO limited the ability of foreign nationals from certain countries to acquire visas and enter the United States. Additionally, we have been informed that some individuals may have had their Global Entry membership revoked as a result of this EO. The legality of the EO is currently being litigated and until that issue is resolved the likelihood of successfully appealing a revocation based on your country of residence is low. Moreover, the federal agency charged with administering the Global Entry program has wide latitude and discretion. If you feel you have been wrongly targeted based on religious beliefs or other protected affiliation you may want to consider contacting the ACLU.

 

Update as of March 21, 2017. The above travel ban has been replaced by new travel restrictions. This new order is now being challenged by various plaintiffs and the outcome of that litigation will likely be pending for the coming months.

Fast Legal Answers: Advice for federal employees dealing with workplace issues

In today’s Fast Legal Answers series I will talking about what to do if you are a federal employee that is facing removal, a suspension, or a demotion at work. Additionally, this article covers other topics such as discrimination and EEOC claims, the processes that need to be followed, and common mistakes federal employees make when handling these kind of cases.

Document everything – hard copies are your friend

Regardless of what issues you are facing in the federal workplace, it is generally safe to say that you should make sure you are documenting what is happening and keeping a paper record of significant events. You shouldn’t expect your agency to keep, or provide, backup copies of documents to you. In some instances, they may be unable or unwilling. Be vigilant about keeping personal copies of documents that you receive from the agency or that you anticipate may be important evidence in the future.

If you’re facing discipline the two most important documents you will receive are the proposal and decision letter. These letters outline your rights, the charges against you and provide very specific details on how to proceed, and important deadlines. You can read more specifics in our federal employee discipline guide.

If you are dealing with a potential discrimination/EEOC claim you should be independently documenting any discriminatory events. You should also be documenting who observed these events, your reaction to the events and any harm you suffered a result of these events. If you are facing discrimination in the workplace our federal EEOC guide is a must read.

Deadlines are short – stay on top of them

The deadlines in federal employment cases are significantly shorter than most deadlines in just about any other are of the law. The deadlines are so short that employment attorneys inexperienced in federal-sector employment law will likely be surprised by how little time they have to help a client file a case. For example, federal EEO claims must be initiated with 45 days of the alleged incident, whereas private-sector employees have 180 to 300 days to file a claim.

Similarly, MSPB appeals typically must be initiated within 30 days of receiving a notice of an adverse action (decision letter). Similarly, after filing an MSPB appeal you typically only have 30 days to initiate discovery, failing to do so may result in you waiving the right to engage in discovery entirely.

If you don’t stay on top of these deadlines they may prevent you from pursuing your case or greatly limiting the claims you can raise. You should always consult with an experienced attorney regarding deadlines and rights. Missing a deadline is such a simple mistake that can have devastating results.

Federal Employment Law is a Unique Practice Area

As the deadlines above demonstrate, federal employment issues are governed by a unique and different set of rules than most other employment cases. This means that you, or your attorney, need to have a complete and full understanding of these unique rules. In short, not all employment lawyers are created equal. Just because someone is an employment attorney, that does not mean they are equipped to handle your federal employment case. You should ask pointed questions related to your representative’s experience before the MSPB, EEOC and negotiating settlements with various federal agencies. If your representative doesn’t have experience handling cases in the federal-sector you should reevaluate your decision to hire them.

Challenging managers and other employees will likely lead to trouble

As jaded as this may sound, what follows is the truth: employees that challenge other employees or their managers are more likely to get into trouble at work. This is not to say you should be dissuaded from reporting fraud, waste, and abuse, or challenging co-workers on issues of great importance–but just know that once you do that you may become persona non grata. If you look at the people that typically become managers in the federal sector, generally they are the kind of people that don’t ask questions, do not challenge authority, and do what they are told.

Trouble leads to more trouble

Once you’ve been subject to a disciplinary action, any subsequent action is likely to be more significant in severity. This is due to the progressive nature of discipline in the federal workplace. Additionally, as a matter of common sense if you have done something to draw the ire of management in the past you should expect to receive greater scrutiny in the future. Therefore it is important that you operate within the rules and policies provided to you by your agency and that if you are unclear you seek clarification through your chain of command.

There are laws to protect you

Federal employees are granted much more protection than your typical private-sector employee. For example, most private-sector employees can be summarily terminated whereas federal employees are assured notice an opportunity to respond and can typically invoke the right to a hearing to challenge their termination. However, if you are not versed in these laws, or do not hire a competent representative to assist you, you mail fail to invoke the full protection of laws which you are entitled. If you don’t work to protect your rights no one will. In many instances you need to be your own advocate.

 

Fast Legal Answers: What is a Qui Tam Lawsuit?

In today’s Fast Legal Answers series I will talking about “qui tam” cases. In short, a qui tam lawsuit is a claim brought by a private individual on behalf of the government. Most often, qui tam cases arise under the False Claims Act (31 U.S.C. §§ 3729–3733).

What does qui tam mean?

Qui tam is shorthand for the Latin phrase “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” meaning “who pursues this action on our Lord the King’s behalf as well as his own.” Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 US 765, 768 fn1 (2000). In plain English, it represents a circumstance where an individual brings a case on behalf of the government.

What is a qui tam civil action?

A qui tam civil action is a civil case that is brought by a private citizen referred to as a “relator” on behalf of the government. As mentioned above, these actions commonly arise in the context of the False Claims Act. Usually, the relator is a whistleblower who worked at a company that has defrauded the government of money.

What is the False Claims Act?

The False Claims Act is a law intended to encourage individuals to protect the federal government’s interests by initiating suits where the government has been defrauded–subject to false claims–by individuals or corporate entities. Typical examples of cases brought under the False Claims Act include medicare fraud, overcharging by government contractors, and the avoidance of paying customs duties for imported merchandise.

Why would someone file a case on behalf of the federal government?

Relators that initiate qui tam actions can recover between 15-30% of the total judgement the government receives. 31 U.S.C § 3730(d). Many False Claims Act (FCA) cases result in large recoveries as a result of the scale of government contracts and the treble damages allowed under the FCA. Accordingly, 15-30% of a 100 million dollar judgment can be a very large incentive for qui tam claimants to initiate cases on the governments behalf?

What kind of recovery can qui tam relators get?

As mentioned above, the recovery depends on the total judgment, but the relator can typically expect to get between 15-30% of the total judgment. Their attorney will likely take 40% of that 15-30% subject to reimbursement for any costs incurred.

What should I do if I know about a potential False Claims Act issue?

If you personally have witnessed a violation of the False Claims Act at your place of work you should consult with an attorney. These are extremely complex cases and take many years to litigate. There are many procedural hurdles that must be followed not only to preserve the relator’s right of recovery but also to assure the entire lawsuit is viable. For example, the information the qui tam case is based on must not have been publicly available, otherwise, the relator may not be entitled to any share of the recovery. Additionally, FCA cases filed by relators must be done so initially, under seal to allow review by government officials.

Hopefully you found this guide helpful. At this time we are not taking on any new clients. All information provided above is for reference purposes and should not be construed as legal advice. You should consult with a licensed attorney before taking any action in your case.

How Hard is it to Fire a Federal Employee: Statistics from the MSPB

My practice focuses on the representation of federal employees, specifically, I help federal employees appeal adverse actions which include removals (terminations) and long suspensions (15-days or more). Most commonly, these cases are litigated before the Merit Systems Protection Board (MSPB). Formerly, I worked as federal agency counsel, where my job was to try and uphold the removals and adverse actions against federal employees before the MSPB. Now, as mentioned, I represent employees at the MSPB. Since I have perspective from both sides of the aisle, I have insight that many practitioners lack. This article will address two main topics: 1) Just how hard is it to fire a federal employee? and; 2) If I am a federal employee facing removal/termination what are my chances of prevailing at the MSPB? 

Each case is obviously different so the chances of you prevailing will depend on the specific facts of your case. However, there are some common themes you can look at related to your case to give you a better idea of the chances of winning on appeal. I’ll address some of the more common facts that lead to removal and other facts that generally help shield employees from removal. I will also review some of the more recent statistics from the MSPB related to case processing to give you a general idea of just how often employees prevail when they challenge adverse actions.

Is it really impossible to fire a federal employee?

I hear it all the time “It’s impossible to fire a federal employee.” In my experience, having participated in discipline cases from both the agency’s and employee’s perspective I can say that this statement is not accurate. Firing a federal employee may be challenging, but it is not impossible.

Certainly, federal employees have more protection than most private-sector employees who generally serve “at-will” and can be fired with little or no notice. However, federal employees can be terminated, it just requires more diligence and effort by management. While the framework for firing a federal employee is certainly more restrictive than private sector employees, if management gets good advice and handles the case properly, it is not that difficult to fire a federal employee.

Background — It is all about (due) process

So why is firing a federal employee difficult? Well, it all goes back to the Constitution. In simple terms, the government cannot take any property or “property interest” from a citizen without due process of law.

For federal employee’s, their continued employment is considered a property interest and because of that, the government cannot summarily fire them. Instead, the Fifth Amendment of The Constitution requires they receive due process prior to their termination. In this context, that means notice and a hearing or other opportunity to challenge their termination. See, e.g, Block v. Hirsh, 256 U.S. 135, 159 (1921) (explaining that, “[t]he national government by the Fifth Amendment to the Constitution, and the states by the Fourteenth Amendment, are forbidden to deprive any person of ‘life, liberty, or property, without due process of law’”). This right was further explained in Cleveland Bd. of Ed. v. Loudermill, 470 US 532 (1985) and refined as it relates to a deciding official’s role in discipline cases and specific procedural requirements by both Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011); and Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 1999).

The takeaway is that: by virtue of your employer being a governmental institution you have more rights than your counterparts that are employed by private sector entities. Nonetheless, if you are federal employee you shouldn’t think this shields you from termination or is a blank-check to engage in bad behavior, as I stated above, firing a federal employee is not impossible.

For more information about the specifics of MSPB case processing read our in-depth article, where we cover the appeal process from start to finish.

Management’s knowledge and experience matter

Given that federal employees are entitled to certain protections that other employees are not, it is important that management is familiar with these rules and that they ensure they meet the minimum due process requirements when they initiate an adverse action against a federal employee. Failing to do so can lead to the discipline being reversed on procedural grounds even if the employee had engaged in the misconduct as alleged. This can be costly for the agency because they have to bring the employee back, give them back pay, and then re-initiate the discipline process. Ultimately, the framework management has to follow is not exceedingly complicated, and competent labor and employee relations staff and agency counsel should be able to guide management towards a Constitutionally sound disciplinary action.

Douglas Factors – The 12 things management must consider

I’ve written about the Douglas Factors at great length here. For the purposes of this article, the Douglas Factors are another important element to any adverse action and management must properly consider these factors when issuing a decision on a discipline case. A manager that fails to consider the Douglas Factors when issuing an adverse action does so at their own peril. The Douglas Factors are:

  1. The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated;
  2. the employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;
  3. the employee’s past disciplinary record;
  4. the employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;
  5. the effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s work ability to perform assigned duties;
  6. consistency of the penalty with those imposed upon other employees for the same or similar offenses;
  7. consistency of the penalty with any applicable agency table of penalties;
  8. the notoriety of the offense or its impact upon the reputation of the agency;
  9. the clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;
  10. the potential for the employee’s rehabilitation;
  11. mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter;
  12. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

Additionally, the Douglas Factors can provide a good indication of the strength of an adverse action early on. For example, if you have a long history of discipline, say you received a three day suspension two years prior, a ten-day suspension 18 months prior, a 30-day suspension 12 months prior and now you are facing removal, all things equal it is very likely that your removal will be sustained on appeal. This is because factor #3 and #10 and #12 strongly point towards sustaining the removal. However, if you have 25 years of federal service with a clean record and your employer proposes removal for your first offense, which is relatively minor in nature, you likely have a very strong case when applying the same Douglas Factors.

Ultimately, the likelihood of successfully challenging an adverse action is dependent on many factors. Generally it is best to consult with an attorney about the facts of your specific case, we offer free consultations with all potential clients.

Merit Systems Protection Board Statistics: What the numbers say about winning your case

Each year the MSPB releases statistics on the number of cases it processed, the types of cases, and the outcome of those various cases, including, whether they were dismissed for jurisdictional or other procedural reasons, or if a decision on the merits was issued. You can find the annual reports here.

What types of cases does the Merit Systems Protection Board handle

Looking at the pie charts below you can see the broad range of cases the MSPB handles on a yearly basis. You’ll note that on average the MSPB processes about 5,000 cases and nearly half of those cases are adverse actions. Adverse actions include removals, suspensions in excess of 14 days,reductions in grade or pay, and furloughs of 30 days or less.

2013 MSPB CASE STATISTICS:

MSPB 2013 Case Statistics

2014 MSPB CASE STATISTICS:

MSPB 2014 Case Statistics

In 2014, the actual number of MSPB cases processed was around 16,000 but this was due to a large number of appeals related to the government shutdown and the furlough of numerous federal workers. The 2014 numbers above reflect the statistics with furlough appeals removed.

Disposition of appeals, a simple overview

Below is the 2013 chart that lays out the disposition of all appeals by case type. These statistics are released in the fall for the preceding year, so the 2013 statistics are the most recent available. You’ll note that nearly 50% of the adverse actions filed were dismissed. Of the cases that made it past dismissal, nearly two thirds settled and the remaining were adjudicated on the merits.

2013 MSPB Adjudication Statistics

Getting in the door: Jurisdiction and Timeliness are killers at the MSPB

As mentioned above, nearly half of all adverse actions were dismissed in 2013. Why is that? Well, there are many jurisdictional and procedural hurdles to getting a case before the MSPB. Probably the most significant hurdle being timeliness. When an employee is served with an adverse action (decision letter) they generally only have 30 days to file their appeal. Being fired is an emotionally difficult process, and the 30 days can go by quickly. However, the MSPB is generally not very forgiving of appellant’s who file late–an untimely case is one less case the MSPB has to process. Therefore, generally, late filings are not looked upon favorably. Absent extraordinary circumstance, a late filing results in you losing your right to challenge the adverse action entirely. See, e.g.Dow v. Office of Personnel Management, 66 M.S.P.R. 21, 24-25 (1994).

This theory is consistent with the numbers below. You’ll note that in both 2012 and 2013 more initial appeals were dismissed, 60% and 62% respectively, than were actually accepted for adjudication. Turning to the merits of the cases, of the 5,881 filings in 2012, only 895 (15.2%) were decided on the merits. 2013 had similar figures, with decisions issued in only 919 of the 5,767 initial appeals (15.9%).

Turning to the ultimate decision in the case, we’ll assume that a ruling of “affirmed” was bad for the appellant (which may not always be true) and we will only count a decision of reversed, mitigated, or other as a victory. For 2012 that means of the 5,881 filings, 238 (4%) “won” their case. In 2013, of the 5,767, only 233 (4%) “won” their case.

2012 MSPB initial appeal statistics
2012 Initial Appeal Statistics

 

2013 MSPB initial appeal statistics
2013 MSPB Initial Appeal Statistics

These numbers can only tell us so much. What they do say is that most initial appeals are dismissed for some jurisdictional or procedural failure. My guess is that a large chunk of these cases are dismissed because they are not timely, or other administrative remedies were sought that barred MSPB jurisdiction. The numbers about appellant’s winning their cases are somewhat misleading, as you can see a large majority of appeals settle and since those case were settled by mutual agreement is reasonable to assume the resolution was desirable to the appellant.

Petitions For Review: Appeals of Appeals, numbers and results

Petitions for review (PFRs) are petitions to the full Board for reconsideration of a decision made by an administrative judge. As you can see, there are not that many petitions every year, and most are denied and not reopened. Interestingly, when a PFR is granted, it is more likely to result in a reversal than the prior decision being appealed. This, of course, is a function of the purpose of a PFR which allows review only when the initial decision contained “erroneous findings of material fact…erroneous interpretation of statute or regulation…involved an abuse of discretion…[or that] new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed.” See 5 C.F.R. 1201.115.

2012 MSPB statistics PFRs
2012 MSPB Petition For Review Statistics

 

2013 MSPB statistics PFRs
2013 MSPB Petition For Review Statistics

So few PFRs are granted likely because the parties requesting review don’t follow the mandates of 5 C.F.R. 1201.115 and seek review on other issues outside of the scope of the regulations, or trying to provide new evidence that was previously available.

What these numbers tell us – and what they don’t

If you’re a federal employee facing an adverse action, reading these statistics is probably fairly disheartening. It certainly looks like a long road ahead if you want to get a long suspension or a removal overturned. Certainly, that will be the case if the agency administered the adverse action properly and you engaged in the misconduct as charged. However, these statistics can only tell us so much. There are many other factors that can change the outcome of a case. Also, keep in mind that only about half of the cases reflected in these statistics are appeals from adverse actions, the remaining half make up a diverse group of other actions that are appealable to the MSPB. Another significant factor that can skew these numbers, is that many of the appellant’s that appear before the board do so by themselves, they are unrepresented, or in lawyer speak “pro se.” Litigating a case before the MSPB is difficult, there are pages of regulations you need to follow and missing deadlines can foreclose you from filing your case, getting discovery, or seeking review if the judge made an error in the initial decision. That is why it is helpful to hire someone who has experience litigating cases before the MSPB. That that does not just mean hiring any attorney. Unfortunately, I met quite a few potential clients who come to me only after a state-law-focused employment law attorney has done irreparable harm to their case. Federal employment law is a unique and distinct area and generally you should only hire federal employment lawyers to represent you before the Merit Systems Protection Board.

Conclusion

I hope this article was helpful and informative. Federal employment law is a very niche practice and there seems to be quite a bit of misunderstanding on this topic.

Turning back to the introductory questions from this article:

1) Just how hard is it to fire a federal employee?

Firing a federal employee is not that difficult, making that termination stick is the harder part. It is important that if an agency wants to remove an employee from the federal service that they provide minimum due process to the employee in question and make sure that their practices are in keeping with new developments in the case-law surrounding federal employee terminations.

2) If I am a federal employee facing removal/termination what are my chances of prevailing at the MSPB? 

It depends. Really, it does. The facts of every case are unique and how those facts fit in to the framework of the various laws will determine the outcome. In all honesty, the MSPB certainly is not the most favorable place for employees. But, many cases resolve through settlement and hiring an experienced federal attorney can help you get the best outcome possible.