Nikko Diaz v. Department of the Navy
SF-0752-21-0282-I-1
| MSPB | Dec 9, 2024Background
- Nikko Diaz, an employee of the Department of the Navy, was removed from his position after failing a drug test.
- Diaz held a Testing Designated Position (TDP), subject to drug testing as part of his employment conditions.
- The agency’s deciding official testified at the hearing that his “policy” is to remove employees in TDPs who fail a drug test.
- Diaz appealed the removal, arguing that his due process rights were violated because the deciding official had a fixed policy of removal, thus not considering alternatives.
- The Merit Systems Protection Board (MSPB) administrative judge sustained Diaz’s removal and found no due process violation.
- Diaz filed a petition for review of the initial decision.
Issues
| Issue | Diaz’s Argument | Navy’s Argument | Held |
|---|---|---|---|
| Whether the agency violated Diaz’s due process rights | Deciding official had a fixed policy and did not consider alternative penalties | The deciding official had and exercised discretion; no formal policy required removal | No due process violation; removal affirmed |
Key Cases Cited
- Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (sets minimum due process rights for public employees: notice, explanation, and opportunity to respond)
- Hairston v. Dep’t of Defense, 119 M.S.P.R. 162 (2014) (due process in adverse employment actions requires a meaningful opportunity to reply)
- Buelna v. Department of Homeland Security, 121 M.S.P.R. 262 (2014) (modifies Hairston and further clarifies due process standards for federal employee discipline)