Special Counsel v. Katherine Coffman, 2017 MSPB 3

Background

Special Counsel filed an OSC complaint alleging Katherine Coffman (Deputy Assistant Commissioner, CBP HRM) approved and certified three competitive civil‑service hiring packages and assisted with one Schedule A conversion to favor three former DHS political appointees at the Commissioner’s request, in violation of 5 U.S.C. §§ 2302(b)(1)(E) and 2302(b)(6).
Allegations included tailoring vacancy announcements/selective placement factors, altering applicant answers, finding unqualified applicants qualified, and drafting/approving embellished Schedule A justifications; DHS Chief Human Capital Officer (J.N.) disallowed the competitive appointments and OPM disallowed the Schedule A appointment.
The ALJ held a 6‑day hearing, found Coffman had only ministerial or limited involvement (chiefly signing cover letters in her supervisor C.G.’s absence and limited edits/coordination on Schedule A materials), and credited testimony that others (notably C.G. and IHC staff) engineered the manipulations.
The ALJ concluded the Special Counsel failed to prove Coffman acted with the intent required by § 2302(b)(6); at most she was negligent, and assigned credibility to Coffman and DHS Chief Human Capital Officer J.N.
The Board denied review of the ALJ’s initial decision, affirmed that the Special Counsel failed to prove intentional unlawful preference and thus declined to impose disciplinary action.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Coffman granted unauthorized preference in violation of 5 U.S.C. § 2302(b)(6) by certifying competitive hires	Coffman knew the packages were designed to convert the Commissioner’s political team to career status and certified them anyway	Coffman had only limited, ministerial involvement, relied in good faith on HR staff, and lacked intent to favor applicants	Held for Coffman: Special Counsel failed to prove Coffman intentionally granted an unauthorized preference; at most negligence
Whether Coffman intentionally advanced Applicant A via Schedule A conversion	Coffman helped prepare and edit Schedule A materials and transferred appointing authority, showing intent to favor Applicant A	Coffman acted on C.G.’s orders; her edits and actions were ministerial or informational and not evidence of intent	Held for Coffman: actions were insubstantial and insufficient to prove intent under § 2302(b)(6)
Whether pre‑hearing statements and emails establish conflicting evidence of Coffman’s knowledge/intent	Pre‑appeal interview statements and emails show Coffman knew the hires were high‑interest and thus intended to favor candidates	Coffman’s hearing testimony, context, and corroborating evidence show she lacked knowledge of manipulation and did cursory reviews	Held for Coffman: inconsistencies do not prove intent; ALJ credibility findings stand
Appropriate standard and role of circumstantial evidence to infer intent	Circumstantial evidence of manipulation and Coffman’s position warrant inferring intent without proving she was the mastermind	Intent must be proven by preponderant evidence; mere surmise/speculation insufficient	Held for Coffman: circumstantial evidence here was not strong enough to infer unlawful intent; burden not met

Key Cases Cited

Special Counsel v. Byrd, 59 M.S.P.R. 561 (1993) (establishing that § 2302(b)(6) requires proof of intentional preference)
Special Counsel v. Cummings, 20 M.S.P.R. 625 (1984) (burden of proving violation by preponderant evidence)
Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir. 2002) (deference to ALJ credibility findings based on demeanor)
Aldridge v. Department of Agriculture, 111 M.S.P.R. 670 (2009) (ALJ demeanor‑based credibility determinations entitled to deference)
Beatrez v. Merit Systems Protection Board, [citation="413 F. App'x 298"] (Fed. Cir. 2011) (assessing consistency of facts with innocent intent)
Spurlock v. Department of Justice, 894 F.2d 1328 (Fed. Cir. 1990) (imprecision in testimony diminishes evidentiary weight)
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (strictness of filing deadlines for appeals)
Mauldin v. U.S. Postal Service, 115 M.S.P.R. 513 (2011) (use of unpublished Federal Circuit decisions when persuasive)