Court opens up more discretion for reducing feds’ punishments

Judges and arbitrators hearing appeals from federal employees seeking to reverse their firings will have more leeway to mitigate those punishments under a new precedent set by a federal court on Thursday. 

Those deciding the appeals must review whether a disciplinary action was appropriate if they find issue with even one part of an agency’s case against an employee, the U.S. Court of Appeals for the Federal Circuit ruled in its decision. Previously, at least some adjudicators had deferred to the punishments agencies had elected to dole out so long as evidence substantiated at least some of the allegations against an employee. 

The panel of judges on the circuit court sided with Jacquana Williams, a former corrections officer at the Justice Department’s Bureau of Prisons, who was fired after failing to disclose she was in a romantic relationship with a former federal inmate. Her partner, Alex Hayes, had been in the bureau’s custody from 2005 to 2013, including a stint at the Federal Correctional Complex in Beaumont, Texas, where Williams worked. While they did not meet until 2016, the bureau’s policies forbid employees from being in relationships with former inmates. 

Williams said, however, she did not know about his time in federal custody until 2019. She reported her relationship with Hayes to the agency the following day, as required. 

When the bureau learned of Williams’ relationship—prior to her disclosure—it placed her on administrative leave and initiated an Internal Affairs investigation that ultimately led to her firing. The removal was based on two charges, namely that she had an improper relationship with a former inmate and that she failed to report it in a timely manner. 

Williams appealed her case to an arbitrator, as was allowable under the collective bargaining agreement struck by her union. The arbitrator said the bureau erred in charging her with failing to report the relationship, noting she had no knowledge of Hayes’ time as a federal inmate. He said it would be “just and fair” to mitigate the punishment to a suspension, and would do so in a private sector case, but his hands were tied as her facility’s warden had appropriately considered the “Douglas Factors” that every agency must weigh when determining the appropriate disciplinary action. 

The federal circuit, however, said the arbitrator failed to understand that when he sustained fewer than all of the agency’s charges, he became the one responsible for determining the responsible penalty. The arbitrator had accepted the warden’s fact findings, even though he had rejected many of those very facts. Going forward, the court said, arbitrators and administrative judges at the Merit Systems Protection Board must reconsider the merits of the specific disciplinary action chosen if they do not sustain all of the charges brought by the agency. 

The court remanded the case back to the arbitrator and instructed him to specifically consider that Williams immediately reported her relationship upon finding out about Hayes’ history. 

Lawmakers in 2017 had attempted to force MSPB to accept whatever degree of discipline the agency had doled out, so long as the evidence supported that misconduct occurred, as part of a firing reform law targeting only the Veterans Affairs Department. The same federal circuit court ruled in 2020 that provision of the VA Accountability and Whistleblower Protection Act was unconstitutional and struck it down. Some lawmakers are seeking to bring back and expand that policy at VA, while others have discussed broadening its reach to the rest of government.