MSPB Overturns “Inflexible” Precedent Requiring Remand Consideration
This case law update was written by Victoria E. Grieshammer, an attorney at the law firm of Shaw Bransford & Roth, where since 2021 she has represented federal officials and employees in all aspects of federal personnel employment law. Ms. Grieshammer also advises federal agencies and employers on employment issues, such as proposed disciplinary actions and other employment-related litigation.
In this case, the Merit Systems Protection Board (the Board) overturned a 2010 decision, Wynn v. U.S. Postal Service, which mandated remand to address affirmative defenses in all instances where certain procedural requirements were not met. In overruling Wynn, the Board set out factors for analyzing whether affirmative defenses have been waived or abandoned.
Appellant, an employee at the U.S. Postal Service, was removed from his position for improper conduct, and he filed a Board appeal. On his appeal form, the appellant indicated that he was raising the affirmative defense of retaliation for prior protected activity, though he did not address the affirmative defense again. Further, in an order summarizing the prehearing conference issued by the administrative judge, the judge noted that the appellant was “raising no affirmative defenses” and neither party objected to the summary. After a hearing, the administrative judge affirmed the removal action.
The appellant filed a petition for review, making several arguments that the administrative judge erred and the agency improperly discriminated against him. The Board rejected these arguments.
The Board next turned to the appellant’s affirmative defense, which he noted on his appeal form but otherwise did not raise in any subsequent filing, during the hearing, or in his petition for review.
In Wynn, the Board held that “when an appellant raises an affirmative defense, the administrative judge must address [it] in a close of record order or prehearing conference summary.” Wynn also established that, if an appellant expressed an intention to withdraw or abandon an affirmative defense, the administrative judge must identify the defense, explain that the Board will no longer consider it, and provide the appellant with an opportunity to object. If these steps are not followed, the Board must raise the issue sua sponte, and remand is necessary.
Wynn has been applied inconsistently, though, and the Board chose to reconsider its “inflexible approach” in this case. The Board also noted that the strict remand requirement in Wynn may make inefficient use of the its resources when the appellant ultimately chooses not to pursue the affirmative defense he or she initially raised.
Accordingly, the Board overruled Wynn where it required the Board to raise the issue of affirmative defense waiver sua sponte and mandated remand. It noted, though, that administrative judges must still identify all affirmative defenses raised in an appeal, explain that the Board will no longer consider the defense if the appellant intends to withdraw it, and give the appellant the opportunity to object to the withdrawal.
To replace the rule in Wynn, the Board articulated six non-exhaustive factors that should be used on a case-by-case basis to determine whether an appellant has waived or abandoned a previously identified affirmative defense. These factors include: (1) the thoroughness and clarity with which the appellant raised an affirmative defense; (2) the degree to which the appellant continued to pursue the affirmative defense in the proceedings below or after initially raising it; (3) whether the appellant objected to a summary of the issues to be decided that failed to include the potential affirmative defense when specifically afforded an opportunity to object and the consequences of the failure were made clear; (4) whether the appellant raised the affirmative defense or the administrative judge’s processing of the affirmative defense claim in the petition for review; (5) whether the appellant was represented during the course of the appeal before the administrative judge, and if not, the level of knowledge of Board proceedings possessed by the appellant; and (6) the likelihood that the presumptive abandonment of the affirmative defense was the product of confusion, or misleading or incorrect information provided by the agency or the Board.
The Board then applied these factors to the appellant’s case, and found that the appellant abandoned his affirmative defense. First, the only information the appellant provided related to his purported affirmative defense form was on his appeal form, which did not include a clear explanation of the defense. “Such sparse information regarding the potential affirmative defense amounts to little more than a pro forma allegation of wrongdoing.” After his initial appeal form, the appellant did not again reference the affirmative defense. Next, “despite being afforded the opportunity to do so, the appellant did not object to the administrative judge’s prehearing conference summary stating that he was not raising an affirmative defense” and that he would be precluded from raising it later unless he objected to the summary. The appellant’s failure to raise his affirmative defense in his petition for review also supported a finding that he intended to abandon the claim. Finally, the appellant was represented by counsel at all stages of the proceeding, and there was no evidence that the appellant’s representative was confused or misled by the agency or the administrative judge concerning the affirmative defense.
For these reasons, the Board concluded that there was no basis to remand the appeal for additional proceedings regarding the affirmative defense, and it denied the petition for review and affirmed the initial decision.
Find the full case here: Thurman v. United States Postal Service.
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