Donald M. Salter v. Department of the Treasury, DA0432000380-I-2, August 27, 2002.

The Merit Systems Protection Board continues to hold that: (1) the notice requirement under 5 U.S.C. § 4303(c)(1) is an employee’s procedural entitlement and is subject to a harmful error analysis; and (2) harmful error cannot be presumed. An appellant must prove that any procedural error substantially prejudiced his rights by possibly affecting the agency's decision.

The Internal Revenue Service provided a Revenue Officer with a 120-day opportunity to improve. The agency then issued its notice of proposed removal, and 13 months later issued its decision to demote for unacceptable performance, in lieu of removal.

On appeal to the Merit Systems Protection Board, the appellant argued that the agency's delay in issuing its decision was harmful because it affected his ability to present his case. The administrative judge reversed the agency action, finding the agency committed harmful procedural error by issuing its decision longer than 30 days after the expiration of the advance notice period and by extending the advance notice period contrary to provisions under 5 C.F.R. § 432.105.

The agency filed a petition for review and admitted that because of the delay the demotion action was procedural error. But it argued that the appellant did not prove harmful procedural error and that the administrative judge impermissibly shifted the burden of proof to the agency to prove that the error was harmless.

The Board agreed that the appellant failed to prove harmful procedural error, noting that the administrative judge neither found nor pointed to evidence detailing any adverse effect of the 13-month delay. The Board also cited previous holdings, including 5 USC § 4303(c)(1), as a procedural entitlement. Diaz v. Department of the Air Force, 63 F.3d 1107, 1109 (Fed. Cir. 1995) (the procedural entitlement is subject to a harmful error analysis). Mercer v. Department of Health & Human Services, 772 F.2d 856, 859-60 (Fed. Cir. 1985) ( to show harmful procedural error, an appellant must prove that any procedural error substantially prejudiced his rights by possibly affecting the agency's decision). Turner v. U.S. Postal Service, 85 M.S.P.R. 565, ¶ 5 (2000) (delays of three-and-a-half years in bringing an action are not unreasonable in and of themselves). Social Security Administration v. Carr, 78 M.S.P.R. 330-31 (1998), aff'd, 185 F.3d 1318 (Fed. Cir. 1999).

The Board reversed the initial decision and remanded the appeal to the administrative judge to adjudicate the merits of the unacceptable performance charge.

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