Agency’s Failure to Include Giglio in Its Proposed Removal Notice Constituted Denial of Due Process, Necessitating Reversal of the Removal Action, MSPB Rules

The Justice Department’s failure to include the Giglio consideration in its proposed removal notice constituted denial of due process, necessitating reversal of the removal action, the U.S. Merit Systems Protection Board (“the Board”) recently ruled.

In this case, the appellant worked for the Justice Department as a GS-13 Criminal Investigator. On March 4, 2010, the agency proposed to remove the appellant from federal service for misconduct based on two charges – “Conduct Unbecoming a DEA Special Agent” and “Making False Statements.”  After considering the appellant’s written reply, the deciding official sustained the charges and removed the appellant effective October 20, 2010. 

In the agency’s decision letter, the deciding official stated that the appellant’s conduct would create problems for the agency under the U.S. Supreme Court’s decision in Giglio v. United States, which requires investigative agencies to turn over to prosecutors any potential impeachment evidence concerning the agents involved in the case. The Giglio issue had not been cited in the agency’s proposal notice.

On appeal to the Board, the appellant raised the Giglio issue as a claim of harmful procedural error on the agency’s part. The Board’s Administrative Judge (AJ), however, ruled that the agency proved the misconduct, that the appellant failed to prove his affirmative defenses, including harmful procedural error, and that the penalty of removal was reasonable.  The appellant filed a petition for review of the AJ’s decision.

In its February 28, 2012, opinion, the Board reversed the AJ’s decision, and ordered the agency to cancel the appellant’s removal. The Board held that when an agency intends to rely on aggravating factors as the basis for imposing a penalty, such factors should be included in the proposed notice of adverse action so that the employee has a fair opportunity to respond to those factors before the agency’s deciding official. 

Here, the Board said, the agency did not provide the appellant notice regarding Giglio issues in the notice of proposed removal. However, in his written evaluation of the penalty determination factors set forth in Douglas v. Veterans Administration, the deciding official listed the appellant’s Giglio issues as an aggravating factor in assessing the removal penalty, which partially contributed to his finding that the appellant had no potential for rehabilitation.

The Board stated that if the information in question is “so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such circumstances,” the failure to include the information in the proposal notice constitutes a denial of due process under the Fifth Amendment, and the adverse action must be reversed.  Thus, the Board found that the failure to list the Giglio consideration in the proposal notice constituted a denial of due process under the circumstances of this case.

Accordingly, the Board ordered the agency to cancel the appellant’s removal action and to retroactively restore his employment, effective October 20, 2010. The agency was also ordered to provide the appellant with back pay, interest on back pay, and the other benefits to which he was entitled.

The case is Solis v. Dep’t of Justice, 2012 MSPB 21, February 28, 2012.

Posted in Case Law Update

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