Howard v. Department of the Air Force
Howard v. Department of the Air Force
Opinion of the Court
ON MOTION
ORDER
The Department of the Air Force (“the government”) moves to remand this case
We agree with the government that the appeal should be remanded to the Board to perform a harmless error analysis as detailed in Ward, 634 F.3d at 1281-82. In this case, the Board concluded that the agency considered “appellant’s poor performance as an aggravating factor weighing in favor of removal, although the proposal notice did not mention the appellant’s poor performance as an aggravating factor.” Howard v. Dep’t of the Air Force, 114 M.S.P.R. 482, 485-86 (2010). The Board thereafter conducted “a new analysis of reasonableness of the penalty ... without consideration of the appellant’s performance.” Id. at 486-87. As we held in Ward, the Board was required to perform a harmless error analysis, where the focus of the analysis is “whether the agency is likely to have reached a different conclusion in the absence of the procedural error.” 634 F.3d at 1282 (emphasis in original). Thus, a remand to the Board to conduct this analysis is proper. While Howard raises other issues on appeal, those issues are intertwined with the Board’s upholding of Howard’s removal after performing a “reasonableness” analysis, and it would be inappropriate to address those issues prior to the Board’s performance of a harmless error analysis.
IT IS ORDERED THAT:
(1) The motion is granted and the appeal is remanded to the Board for further proceedings in light of Ward v. U.S. Postal Serv., 634 F.3d 1274 (Fed.Cir. 2011).
Reference
- Full Case Name
- Sherman HOWARD v. DEPARTMENT OF the AIR FORCE
- Cited By
- 2 cases
- Status
- Published