Valles v. State
17 F.4th 149
Fed. Cir.2021Background
- Joseph Valles was a Department of State passport specialist (hired 2011; transferred to Colorado 2013) with prior discipline: a three-day suspension in 2016 and a five-day suspension in 2018.
- For calendar year 2018 he received a "Fully Successful" performance evaluation.
- In March 2019 the agency proposed removal based on four charges (18 specifications) dated July 2018–February 2019, including failure to follow instructions, failure to protect PII, failure to follow policy, and improper personal conduct (drinking from a wineglass at a public counter). Removal effective May 7, 2019.
- The MSPB administrative judge sustained all charges, found a nexus to the agency’s mission, and affirmed removal after applying the Douglas factors; the initial decision became the Board’s final decision.
- Valles appealed to the Federal Circuit, arguing (among other things) that the fully successful evaluation rebutted Charge One and that the Board erred on penalty, hearsay, and the wineglass misconduct finding.
- Standard of review: the court may set aside the Board only if decision is arbitrary, procedurally defective, or unsupported by substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board erred by disregarding Valles's “Fully Successful” evaluation as rebuttal to Charge One (failure to follow instructions) | The evaluation covers following instructions and therefore rebuts the misconduct charge | The Board credited management’s distinction between performance and misconduct and found the evaluation irrelevant to misconduct | The court held the evaluation was relevant and should have been considered, but Valles failed to show harmful error because he admitted the conduct and several specifications post-dated the evaluation; Charge One stands |
| Whether the Board unreasonably upheld removal by failing to consider the evaluation in the penalty analysis | A fully successful rating is dispositive on seriousness for events during the evaluation period and should mitigate penalty | The deciding official did consider the evaluation; removal was reasonable given repetitive misconduct and prior discipline | The court held any failure to discuss the evaluation was not harmful: the deciding official weighed the evaluation and Douglas factors, and the removal penalty was reasonable |
| Whether the Board improperly relied on hearsay evidence | Hearsay statements were relied on to prove failure to follow policy | Agency argued hearsay is permissible and can be credited under MSPB practice | The court held hearsay may be considered and credited; the Board’s findings were supported by substantial evidence |
| Whether the improper personal conduct charge (wineglass) lacked proof because Valles drank water, not alcohol | Valles said the glass contained water and argued this undermines misconduct finding | Agency noted the act was in full public view regardless of contents | The court held that Valles’ acknowledgment that he drank from a wineglass in public did not rebut the charge; the Board’s finding stands |
Key Cases Cited
- Shinseki v. Sanders, 556 U.S. 396 (2009) (harmless-error standard requires showing a likelihood the result would differ)
- Boss v. Dep’t of Homeland Sec., 908 F.3d 1278 (Fed. Cir. 2018) (appellate harmless-error application in MSPB review)
- Giove v. Dep’t of Transp., 230 F.3d 1333 (Fed. Cir. 2000) (application of substantial-evidence and harmless-error principles)
- Connor v. Dep’t of Veterans Affs., 8 F.4th 1319 (Fed. Cir. 2021) (penalty must reflect a responsible balancing of Douglas factors)
- Guise v. Dep’t of Just., 330 F.3d 1376 (Fed. Cir. 2003) (agency penalty choice reviewed for abuse of discretion)
- Lachance v. Devall, 178 F.3d 1246 (Fed. Cir. 1999) (deference to agency’s choice of penalty)
- Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357 (Fed. Cir. 1998) (hearsay admissible and may be credited in MSPB proceedings)
- Douglas v. Veterans Admin., 5 M.S.P.B. 313 (1981) (sets the Douglas factors for penalty determination)