Making a Threat

Melville Johnson
April 10, 2020
When a federal agency issues a charge on the basis of a federal employee making a threat, there are several factors that are familiar to most in regards to intent and the effect on the person in which the comment was directed toward, and how they actually felt when they heard the comment.

The agency proves this charge, with preponderant evidence, by showing: (1) the employee made certain statements; and (2) the statements constitute a threat when viewed from the perspective of a reasonable person, based on the following factors: the listener’s reaction, the listener’s apprehension of harm; the speaker’s intent; any conditional nature of the statements; and the attendant circumstances.[1]

This charge requires considering the circumstances surrounding any threatening statement. While not dispositive, the speaker’s intent is significant. It is also important to understand what is meant by enforcing the intent component. The MSPB has reversed a decision in which the Administrative Judge determined that a threat was unproven because the appellant had not “intended to carry out his words.” As the MSPB stated, “whether an employee intends to carry out a threat is irrelevant as to whether or not the employee intends to make a threat." [2]

The MSPB has also concluded that there may be circumstances in which an employee commits conduct that is a threat under Metz, but he or she is incapable of formulating intent because of mental illness. While a threat is not a specific intent-type offense, an employee’s incompetence will likely be a considerable roadblock improving a threat charge.

The federal employee attorneys at Melville Johnson, P.C. are highly experienced in MSPB matters such as these, and are willing and able to assist you in your federal employment legal matters. Call or message us today to discuss your claim and learn how we can assist you.

[1] Metz v. Dept. of Treasury,780 F.2d 1001 (Fed. Cir. 1986).

[2] Murphy v. DHHS, 34 MSPR534, 538 (1987).

This blog and web site published by Melville Johnson, P.C. should not be used as a substitute for seeking competent legal advice from a licensed professional attorney. Readers of this information should not act upon any information contained on this blog or website without seeking professional counsel.
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