Below is a 2011 DC federal case wherein a plaintiff unsuccessfully tried to challenge his Global Entry membership denial. It provides a good overview of the legal frameworks potentially available for challenge, and their limits. It also is a good indicator of the large amount of discretion given to DHS/CBP in administration of the Global Entry program. You can read it in the embedded file below or view it directly here: Global Entry Unsuccessful District Court Challenge.
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.
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.
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:
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;
the employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;
the employee’s past disciplinary record;
the employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;
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;
consistency of the penalty with those imposed upon other employees for the same or similar offenses;
consistency of the penalty with any applicable agency table of penalties;
the notoriety of the offense or its impact upon the reputation of the agency;
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;
the potential for the employee’s rehabilitation;
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;
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:
2014 MSPB 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.
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.
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.
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.
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.
At its core, the WPA is intended to prevent fraud, waste, and abuse in the federal government by encouraging employees to report violations and the mismanagement of public resources. The act does this by assuring whistleblowers protection from retaliation for disclosures that the make.
What are the core elements of a whistleblower case?
The key criteria present in a whistleblower case are that: 1) a personnel action is taken against 2) a covered employee because they made a 3) protected disclosure.
What is a personnel action?
A personnel action is most commonly understood as it relates to the selection, or non-selection of an employee but it also covers other issues such as promotion or any decision related to pay or benefits. More specifically, the statute provides the following definition:
(A) “personnel action” means—
(i) an appointment;
(ii) a promotion;
(iii) an action under chapter 75 of this title or other disciplinary or corrective action;
(iv) a detail, transfer, or reassignment;
(v) a reinstatement;
(vi) a restoration;
(vii) a reemployment;
(viii) a performance evaluation under chapter 43 of this title;
(ix) a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph;
(x) a decision to order psychiatric testing or examination;
(xi) the implementation or enforcement of any nondisclosure policy, form, or agreement; and
(xii) any other significant change in duties, responsibilities, or working conditions;
A covered employee is defined by 5 U.S. Code § 2302(a)(2)(B). Generally, covered employees include current and former federal employees along with applicants to positions in the executive branch both in competitive and executive service. Senior Executive Service positions are covered as well. Note that some agencies, specifically those involved in foreign and counter-intelligence operations, are excluded. Accordingly, employees from the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office are not considered covered employees. 5 U.S. Code § 2302(a)(2)(C)(ii)(I).
What sort of protected disclosures are covered by the WPA?
Covered employees are protected when they make any disclosure of information that they reasonably believe evidences: (1) a violation of any law, rule, or regulation; (2) gross mismanagement; (3) a gross waste of funds; (4) an abuse of authority; or (5) a substantial and specific danger to public health or safety. See 5 U.S. Code § 2302(b)(8).
Who do I have to make the disclosure to?
Typically, a disclosure to the individual involved in the violation is not sufficient to trigger whistleblower protection. The law has been interpreted to allow disclosure to a broad range of individuals. For example, disclosure can be made up the chain of command, to the heads of agencies and to members of congress. The party receiving the disclosure doesn’t need to be someone who can immediately stop or remedy the violation. So, if your supervisor is stealing money from your agency you reporting your knowledge of that misconduct back to the same supervisor wouldn’t be sufficient, but contacting his supervisor, or internal affairs, would.
Do I have to be the one who made the disclosure?
No. Whistleblower protection can be extended to individuals perceived as whistleblowers and individuals closely associated with actual whistleblowers. See Shelly v. Dept. of Treasury, 75 MSPR 411 (WPA protection attaches when employee “was perceived to have made, or was closely associated with someone who made, a disclosure protected under 5 U.S.C. § 2302(b)(8); the agency took or failed to take, or threatened to take or fail to take, a “personnel action” listed at 5 U.S.C. § 2302(a)(2)(A); and the appellant exhausted proceedings before OSC.”)
Who do I contact if I have been a victim of reprisal for my whistleblowing activities to?
The Office of Special Counsel (OSC). This is their standard form for reporting unlawful reprisal for whistleblowing activities. After your file your claim with the OSC they will investigate it. Then they may initiate an action on your behalf or issue you a right-to-file letter which allows you to pursue your whistleblowing case individually. It is critical that you make initial contact with the OSC and exhaust your administrative options prior to filing a formal action.
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.
For the first, in what is likely to be a continuing series titled Fast Legal Answers, I am going to give a quick and simple overview of a specific legal issue or topic. These article will be short, under 500 words, and will be as direct as possible.
Today I am going to talk about reasonable accommodations.
If you want more depth, I suggest you check out our legal guides section. Some of the articles there are huge and provide all the detail you could ever want.
This article will focus on reasonable accommodations in the federal sector. But the principles have general application.
What are they?
A reasonable accommodation (RA) is a change to a job, work environment, or the way work is performed, that allows an individual with a disability to apply for or perform a job.
What is the basic rule?
An agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individualwith a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. 1630.9. The Commission also notes that an employee must show a nexus between the disabling condition and the requested accommodation. SeeWiggins v. United States Postal Service, EEOC Appeal No. 01953715 (April 22, 1997).
Ok, explain that in non-legal speak please?
An employer must provide a RAif:
The employee has a disability.
The employee can perform the job normally with an accommodation (otherwise qualified individual).
And that providing an accommodation wouldn’t be HUGE burden on the agency.
Does my employer have to give the accommodation that I ask for?
Nope. The agency just has to give you a reasonable accommodation that “enable[s] [you] to enjoy the same benefits and privileges of the job as enjoyed by non-disabled individuals.” Chausse v. National Security Agency, EEOC Appeal No. 01A32552 (June 25, 2003).
So, for example, if you are blind and need help using your computer, you may request an employee read the screen for you and help you use the mouse and keyboard. Instead, the agency provides you with accessibility software that gives verbal cues and allows you to interact with, and utilize, the computer. In this instance, the accommodation isn’t what you asked for, but it is still likely a reasonable one.
What if my employer refused to accommodate me?
You might have a discrimination case based on your disability, assuming you meet the criteria above, and any potential accommodation wouldn’t put an undue hardship on the agency.
If you think you might have a case, you should consult with an attorney. Reasonable accommodation cases are very fact specific so there is no simple formulaic way to know if you have been the victim of discrimination based on a failure to accommodate.
What constitutes undue hardship?
This too, is a fact-specific inquiry. It really turns on the specifics of your case. Large agencies with huge budgets may have less leeway than a smaller agency squeaking bye. The EEOC suggests the following factors are a good place to start in determining whether there is undue hardship:
the nature and cost of the accommodation needed;
the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;
the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer;
the impact of the accommodation on the operation of the facility
I hope this article helped you understand how reasonable accommodations are analyzed. I’m nearly 200 words over my limit. I guess I’ll have to work on keeping it shorter for my next article in the Fast Legal Answers series.
This list contains helpful resources for individuals who have cases before the Merit Systems Protection Board (MSPB) or for practitioners and representatives who are appear before the board. Explanations are included below the link when necessary.
I regularly add new links and resources to this guide. If you have suggestions feel free to email suggestions.