THE LARGEST COLLECTION OF LEGAL JOBS ON EARTH
LawCrossing Feature
Fired SEC Lawyer Reverses Penalty by Submitting Post-penalty Evidence The case of Norris v. SEC, U.S. Federal Circuit Court of Appeals, No. 2011-3129 has established a new precedent in civil service law by allowing admission and consideration of post-penalty evidence. As Michael Kator, a lawyer for the plaintiff told the media, “It resolves an important issue in civil service law that was ambiguous: whether post-removal medical evidence could be considered in determining an appropriate penalty. It’s important to be able to say the reasons that an action was taken are no longer valid.”
Norris was a veteran Securities and Exchange
During the arbitration over his dismissal in November
Commission trial lawyer serving the SEC for more
2010, Norris submitted that his circumstances
than 17 years, and was fired for sending inappropriate
had substantially improved, and according to his
emails.
psychiatrist there was no possibility of recurrence of errant activity. However, the arbitrator did not take the
On Tuesday, the U.S. Federal Circuit Court of Appeals in
new evidence properly into consideration and held that
Washington, D.C. overturned the ruling of an arbitrator
“if sympathy were the sole deciding factor,” only then
that upheld the August 2009 dismissal of Jeffrey Norris
Norris would deserve to regain his job. The arbitrator
from service.
also held that the SEC had the right to fire Norris based on what the SEC knew at the time.
The three-judge panel of the Court of Appeals wrote, “We hold that where new evidence in mitigation of the
The Federal Court of Appeals overturned the arbitrator’s
penalty imposed is presented … the evidence must
decision and in effect set a precedent whereby
be considered in determining whether the agency’s
evidence of a change of state of the individual following
imposed penalty was reasonable.” The order of the
discipline over his/her behavior can be admitted to
court required the arbitrator to consider whether Norris’
argue against the original penalty.
dismissal was “a responsible balance within tolerable limits of reasonableness” in light of the new evidence.
The court held that a reading of relevant law showed that it was the intention of the Congress that
Norris had been dismissed from service for sending
arbitrators, like in the case of
three emails in late 2008, including one with his political views sent to the Washington Post, one
Norris’, should review “all aspects” of a case including
containing a confidential report and one internal email
new evidence that might suggest the original penalty to
demeaning SEC staff.
be excessive. Norris, however, has quite a track record concerning
Norris had argued that the emails were influenced
emails. In 2007, he had been suspended for two weeks
by his Attention Deficit Hyperactivity Disorder, and
for sending emails questioning the patriotism of Mark
from personal troubles arising out of his daughter’s
Cuban, the owner of the Dallas Mavericks basketball
Asperger’s Disorder and the fact of his wife becoming
team. Norris got inflamed over Cuban’s support of a
disabled.
movie that suggested the U.S. government had planned the 9/11 attacks to create a pretext for the Iraq war.
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