The Officer Appellate Board, Part Four: The Three Questions the Board Answers

Part Three covered how the record gets built and how quickly it closes. This part covers what the Board does with it.

The directive tells an officer exactly what the Board decides. Section 6.A(2), describing what happens when a claim outside the Board's authority is raised, says the Board will decide "whether management proved the charges by the applicable standard of proof, whether there is a nexus between a legitimate government interest and the matter at issue, and whether the penalty was reasonable."

The discipline handbook uses the same three in its definition of a sufficiency review, at Section A(31) of the Handbook to MD 1100.75-3. Management is supposed to satisfy them before an action issues. The Board asks them afterward.

Question One: Did Management Prove the Charges

Management carries the burden, and the directive says so at Section 6.D(1):

Two standards, and the difference between them is not small. The handbook defines preponderance at Section A(9) as evidence sufficient to find a fact more likely true than untrue. It defines substantial evidence at Section A(13) as evidence a reasonable person "might accept as adequate to support a conclusion, even though other reasonable persons might disagree," and states plainly that it "is a lower standard than preponderance of the evidence."

Which one applies depends on how the action was taken, and the answer is in the discipline handbook rather than in either OAB document.

Performance-based actions are held to substantial evidence. That is stated twice, at Section A(21) of the handbook and again at Section 6.I(2) of the directive.

Conduct-based actions may be held to either. Section A(5) says conduct-based actions "may be held to the preponderance of the evidence standard or the substantial evidence standard, as appropriate."

Then there is the one-step process, which is where this matters most. Section D(1)(b) of the handbook sets the standard by action type. Reprimands in lieu of suspension of three days or less, suspensions of three days or less, and indefinite suspensions all "must meet the preponderance of evidence standard of proof." One-step removals, listed at Section D(1)(b)(iv) and covering validated drug and alcohol test failures, refusal to test, theft and drug cases, intentional serious security breaches, sleeping on duty while assigned to a security activity, and arrests for the offenses in Appendix A, "must meet the substantial evidence standard of proof."

A three day suspension in that process requires the higher standard, and a removal requires the lower one.

For bargaining unit officers there is another provision in play. Article 27.C.4 of the 2024 agreement states that "disciplinary and adverse actions must be supported by a preponderance of the evidence and must be consistent with all applicable laws, rules, regulations, policies, and provisions of this Agreement." No substantial evidence carve-out appears anywhere in it. That sits in tension with the discipline handbook, and which document controls is not answered by either one. The agreement remains protected by a preliminary injunction in ongoing litigation, and TSA's own FAQ describes the bargaining unit alternative as available "so long as the CBA remains in effect."

No comparable provision reaches supervisors. For an STSO, the substantial evidence standard for one-step removals applies without qualification.

Against Giants can identify which standard applied to your action and whether management met it.

Charges Are Not Interchangeable

The handbook separates a charge from its specification at Sections A(4) and A(29). The charge is the label. The specification is the factual narrative describing what happened.

The Table of Offenses and Penalties is direct about how loosely the labels should be treated. It warns management not to "force-fit" misconduct into a listed offense, calls the possible charges "only suggestions," and says the selection of a charge label "should be made based on the specific facts of each matter."

Some charges carry elements management has to prove. The Table lists three for insubordination: the employee was given a lawful order, the employee disobeyed it, and the action was willful and intentional. For misrepresentation, it states that the charge "must include a showing that the employee intended to personally gain from the misrepresentation." It separates making a misstatement with intent to mislead from providing inaccurate information, notes that the second "does not require proving intent to mislead," and assigns them different penalty ranges.

An officer who accepts the charge as written and argues only about the facts has conceded ground that was available.

Against Giants examines whether the charge fits the conduct and whether every element of it was proven.

Question Two: Nexus

Nexus is defined at Section A(16) of the discipline handbook as a connection between a legitimate government interest and the conduct, performance, or matter forming the basis of the action. The same section says when it is assumed:

For most on-duty conduct, this question is already answered against the officer. Off-duty conduct is where it is genuinely contested, and the Table adds that for certain offenses nexus may be presumed there too.

Question Three: Was the Penalty Reasonable

Section 6.D(2) of the directive sets out what the Board weighs:

Two things sit in that paragraph. The Board can reduce a penalty and cannot increase one, so there is no downside risk in arguing penalty. And the standard it applies comes from two documents outside the OAB policy entirely.

The Twelve Factors

Section G of the discipline handbook lists twelve penalty factors. They will be familiar to anyone who has worked in federal employee relations, because they are the Douglas factors, taken from the Merit Systems Protection Board's decision in Douglas v. Veterans Administration and carried into TSA policy nearly word for word.

They cover the nature and seriousness of the offense and whether it was intentional, technical, inadvertent, malicious, committed for gain, or repeated; the employee's job level and type of employment; the past disciplinary record; the past work record including length of service, performance, and dependability; the effect on the employee's ability to perform and on supervisory confidence; consistency of the penalty with those imposed on similarly situated employees; notoriety and impact on the agency's reputation; the clarity of notice the employee had of the rule violated; the clarity of notice about performance expectations; potential for rehabilitation; mitigating circumstances such as job tensions, mental impairment, harassment, bad faith, malice, or provocation by others; and the adequacy of alternative actions to deter the conduct.

Douglas has decades of decisional law behind it explaining how each factor is analyzed and what a defensible penalty selection looks like. None of that appears in any TSA document. The list is in the handbook. The method for arguing it is not.

Against Giants builds penalty arguments against these factors, which is the part of an appeal the Board is most able to act on.

Where the Factors Stop Applying

Section G opens with a limit that decides some cases before the argument starts:

Appendix A lists the TSO offenses for which removal is required, including failure to maintain certification, validated drug or alcohol test failure, refusal to test, theft and on-duty drug or alcohol cases, sleeping on duty while assigned to a security activity, and intentional serious security breaches. For those, the mitigation argument that works everywhere else is unavailable by the terms of the policy.

There is still a route. Appendix A carries a footnote providing that a Federal Security Director may seek an exception to mandatory removal by submitting a written request explaining the exculpatory facts and circumstances, through the appropriate Regional Director, to the Deputy Assistant Administrator for the Office of Security Operations. That is a different argument made to a different official on a different timeline, and it is not part of the appeal.

Against Giants can tell you which track your case is on before you spend the appeal arguing a factor that does not apply to it.

What the Table Actually Is

The Guidelines for Conduct-Based Discipline, dated October 11, 2018 and signed by Assistant Administrator for Human Capital Karen Shelton Waters, is less binding than it appears. It describes itself as intended "to provide guidance," says the guidelines "are intended to maximize management flexibility and are not a mandatory or rigid standard," and states that management officials "have the discretion to go outside the ranges listed in this guide if they determine that circumstances warrant."

Two provisions inside it deserve attention from any officer reading their own penalty range.

The offense columns do not mean what they appear to mean. Paragraph 2 states that first offense, second offense and so on refer to "the number of times an employee was previously disciplined for any misconduct" and that the columns "should not be construed solely as the number of times an employee was previously disciplined for the same or similar misconduct." A reprimand from years ago for something unrelated moves an officer into the second column.

And the Table names supervisors specifically. Paragraph 4 lists aggravating factors including "type of position (for example, supervisors and law enforcement officers are held to a higher standard)." Paragraph 9 repeats it: "Senior officials and law enforcement officials are held to a higher standard of conduct." The same principle appears as the second penalty factor in Section G. For an STSO, position is not neutral in a penalty analysis.

The Table's list of mitigating examples is short by comparison. Paragraph 4 offers four: self-reporting, efforts to remedy wrongdoing, timely acknowledgment of wrongdoing, and long periods with no prior discipline.

One provision runs the other way and is easy to miss. Paragraph 8 states that a demotion "may always be considered as an option when the applicable penalty range includes Removal." Since the Board may mitigate, that is an alternative outcome an appeal can ask for.

Procedure, and What a Procedural Error Is Worth

The Board reviews more than the merits. Section 6.E of the directive:

Section H of the discipline handbook is where those obligations live. The proposal has to state each charge and specification with a description of the supporting evidence, the proposed penalty, the aggravating and mitigating factors considered, the right to reply within seven calendar days, the right to a representative, the name of the deciding official, and a listing and copy of the material relied upon. Section H(3)(a) requires that if the deciding official becomes aware of evidence the employee never had a chance to review, the employee must be given that opportunity before a decision issues. Section H(4) requires the decision to address each charge and specification, state the basis for each determination, confirm the reply was considered, discuss defenses raised, and explain the penalty determination.

Every one of those is a place management can fail. But identifying a failure is not the argument. Section L of MD 1100.75-3 sets the test:

The error has to be connected to the outcome. An officer who lists procedural defects without making that connection has given the Board nothing it can act on, and nothing in either document explains how the connection is made.

Against Giants identifies procedural failures in the record and argues them against the harmful error standard.

What Comes Next

Part Five covers reconsideration, what the standard for it is, who decides it, and what happens after a decision issues.

Three questions decide an appeal, and the substance behind all three sits in documents the OAB policy points to rather than contains. If you are building an appeal now, the first conversation with us costs nothing. againstgiantsllc.com/get-help.html or info@againstgiantsllc.com