In MSPB Appeals, the Appellant (employee) can assert “harmful error” as a defense to an Agency adverse action. Harmful error can be a difficult concept, even for many attorneys. Here is what it is, in layman’s terms.

First – a little background. Because Federal Employees are employed by the United States Government, they typically have a “property interest”, protected by the U.S. Constitution, in their continued employment. Thus, while private sector employees can often be fired for any reason or no reason, most federal sector employees cannot be removed from their job without basic “due process” required by the U.S. Constitution. That “due process” amounts to “notice and a hearing” – such as the MSPB Appeal process.

When an Agency does not provide the correct “notice” or “due process”, the adverse action can sometimes be reversed or mitigated. In order to succeed on this claim, the employee can assert the affirmative defense of “harmful error”. There are two parts to this defense: there has to be an “error”, and it has to be “harmful”.

In my experience, nearly every adverse action has some error in the notice or in the procedure. Sometimes the employee is not provided with notice of their MSPB appeal right, sometimes they are not provided with the specific grounds of the charges against them, and sometimes they are denied access to the material relied upon by the Agency in enacting the adverse action. Thus, it is often easy to meet the first part of the harmful error test.

The second part – proving that the error is harmful – is considerably harder. The essential proof is that the Administrative Judge must be convinced that the error “substantially prejudiced” the employee’s rights by possibly affecting the agency’s decision. In other words, an Appellant probably won’t prevail unless (s)he can show that but-for the error, the decision would have been different.

The difficult in proving “harmful error” should not be interpreted as saying that it cannot be proved. Consider these two cases:

Error was not Harmful – In this case, an employee had to wait 13 months between the proposal of removal and the Agency’s decision to demote him. The Agency conceded that 13 months was an error, but there appears to be no evidence which suggests how the employee was prejudiced, particularly since he was demoted and not removed. In other words, the delay in this case may have been to the employee’s advantage. Salter v. Dept. of Treasury, 92 M.S.P.R. 355 (2002).

Error was Harmful – In this case, an employee was demoted. In making the decision to demote the employee, the Agency relied on allegations of misconduct which were not mentioned in the proposal letter. Because the deciding official relied on these allegations, and because the Agency probably would not have demoted him if it did not consider these allegations, the demotion was reversed by the MSPB. Turner v. U.S.P.S., 85 M.S.P.R. 565 (2000).

If you would like to consult with an MSPB Attorney about your Harmful Error defense, contact the Law Offices of Eric L. Pines, PLLC today.