Review of the United States Marshals Service Discipline Process
Report No. I-2001-011
September 28, 2001
Policies and Procedures
A federal employee who has had a misconduct allegation substantiated by an investigation is subject to disciplinary action. This action is imposed during the adjudication phase as provided in the Civil Service Reform Act of 1978; and Title 5, Code of Federal Regulations, Part 752, Adverse Actions; and 5 U.S.C. Chapter 75, Section 7501-7504, 7511-7514.
Department of Justice
Office of the Inspector General
The Inspector General Act of 1978, as amended, and Attorney General Order 1931-94, dated November 8, 1994, require misconduct allegations concerning USMS employees and contractors to be reported first to the OIG Investigations Division for review and disposition. The OIG decides whether it will conduct an investigation or refer the misconduct allegation to the Chief, USMS OIA, for subsequent investigation by an OIA investigator, the originating district or division, or for discretionary closure if appropriate.
The OIG Assistant Inspector General (AIG) for Investigations issued a memorandum to the Immigration and Naturalization Service, the Bureau of Prisons, and the USMS, dated July 1, 1998, which outlined guidelines for reporting misconduct allegations to the OIG. This memorandum provided a general breakdown of misconduct allegations into three separate classifications, with corresponding reporting periods to the OIG depending on the severity of the allegation. Classification 1 requires immediate reporting, and no investigation can be initiated prior to receipt and classification of the allegation by the OIG. Classification 2 requires reporting within 48 hours. An internal investigation can be started but the OIG reserves the right to terminate and initiate its own investigation. Classification 3 only requires that the allegation be reported in a pre-determined monthly format. These three classifications also carry certain reporting requirements if the investigation is referred back to the component.
The AIG for Investigations issued an additional memorandum, dated February 23, 1999, to the USMS which clarified policy requirements of reporting misconduct given reporting and consistency concerns.
Justice Management Division
DOJ Human Resources Order DOJ 1200.1, "Discipline and Adverse Actions," August 25, 1998, which replaced DOJ Order 1752.1A, recognized that each Bureau has different management requirements that must be addressed in determining the appropriate offense penalty. This Order granted each Bureau the authority to establish its own Schedule of Disciplinary Offenses and Penalties. However, the Bureaus are required to notify the Department's Workforce Relations Group (WRG) within the Justice Management Division of any case that presents a significant legal (as opposed to factual) issue that may be of interest to the Department. This requirement is due in part to the potential of the WRG representing any Bureau (at the request of the Bureau or the direction of the Assistant Attorney General for Administration) or the Department on matters that fall within the jurisdiction of MSPB, its administrative judges, or the Office of Special Counsel.
United States Marshals Service
Discipline Delegation Policy
The USMS Policy Notice 94-002A, "Discipline Delegation Policy," dated January 1995, describes who serves as the proposing and deciding officials for the following misconduct categories:
Informal Discipline -- Minor corrective actions (i.e., oral admonishments, letters of caution) are issued at the lowest appropriate level.
Disciplinary Actions of 14 Days or Less -- The Chief Deputy United States Marshal or Branch/Unit Chief serves as the proposing official for all disciplinary actions warranting a suspension of 14 days or less at the District or Division level. The U.S. Marshal or Division Chief serves as the deciding official for all disciplinary actions warranting a suspension of 14 days or less.
Disciplinary Actions Greater than 14 Days -- The Discipline Panel comprises five USMS officials (two serve as alternates) who serve as panel members for two years. The Discipline Panel reviews and issues proposed discipline action in all misconduct cases that will result in suspensions greater than 14 days. The Discipline Panel can also propose less severe discipline. A senior USMS official, selected by the Director, serves as the deciding official for the Discipline Panel's proposed discipline actions.
Other USMS Discipline Policies
Related policies and directives issued by the USMS that also identify misconduct complaint reporting, investigation, and adjudication requirements are found in USMS Policy Directive 99-33, "Misconduct Investigations," and Policy Directive 99-18, "Code of Professional Responsibility." Related policy and procedures also are published in the USMS Policy and Procedures Manual, Volume III, 3.13, Discipline and Adverse Actions. However, the manual has not been updated since October 31, 1995, to fully reflect all related and subsequent polices.
Pursuant to DOJ Order 1200.1, the USMS opted to retain the existing USMS Table of Offenses as a guide in determining appropriate discipline penalties. The USMS Policy and Procedures Manual states that the Table of Offenses "is intended to provide guidance in the application of uniform discipline" and that management should not apply a rigid or narrow interpretation when determining discipline action. The Table "is intended to provide maximum flexibility in the assignment of penalties to employees in a variety of grades and positions and for varying degrees of culpability." The Manual also states "…there is enough flexibility that offenses listed in the Table can be used in proposing and deciding penalties for similar offenses not found in the Table." There are 28 separate offense categories listed in the Table of Offenses. There are 99 separate offense codes used to identify various misconduct allegations.
Merit Systems Protection Board - The Douglas Factors
In Douglas v. Veterans Administration (1981), the MSPB identified 12 relevant factors agency management needs to consider and weigh in deciding an appropriate disciplinary penalty. The factors are: