Fired SEC Lawyer Reverses Penalty by Submitting Post-penalty Evidence

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By Harrison Barnes, CEO and Founder - BCG Attorney Search

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 It's important to be able to say the reasons that an action was taken are no longer valid.”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 Commission trial lawyer serving the SEC for more than 17 years, and was fired for sending inappropriate emails.

On Tuesday, the U.S. Federal Circuit Court of Appeals in Washington, D.C. overturned the ruling of an arbitrator that upheld the August 2009 dismissal of Jeffrey Norris from service.

The three-judge panel of the Court of Appeals wrote, “We hold that where new evidence in mitigation of the penalty imposed is presented … the evidence must be considered in determining whether the agency's imposed penalty was reasonable.” The order of the court required the arbitrator to consider whether Norris' dismissal was “a responsible balance within tolerable limits of reasonableness” in light of the new evidence.

Norris had been dismissed from service for sending three emails in late 2008, including one with his political views sent to the Washington Post, one containing a confidential report and one internal email demeaning SEC staff.

Norris had argued that the emails were influenced by his Attention Deficit Hyperactivity Disorder, and from personal troubles arising out of his daughter's Asperger's Disorder and the fact of his wife becoming disabled.

During the arbitration over his dismissal in November 2010, Norris submitted that his circumstances had substantially improved, and according to his psychiatrist there was no possibility of recurrence of errant activity. However, the arbitrator did not take the new evidence properly into consideration and held that “if sympathy were the sole deciding factor,” only then Norris would deserve to regain his job. The arbitrator also held that the SEC had the right to fire Norris based on what the SEC knew at the time.

The Federal Court of Appeals overturned the arbitrator's decision and in effect set a precedent whereby evidence of a change of state of the individual following discipline over his/her behavior can be admitted to argue against the original penalty.

The court held that a reading of relevant law showed that it was the intention of the Congress that arbitrators, like in the case of

Norris', should review “all aspects” of a case including new evidence that might suggest the original penalty to be excessive.
Norris, however, has quite a track record concerning emails. In 2007, he had been suspended for two weeks for sending emails questioning the patriotism of Mark Cuban, the owner of the Dallas Mavericks basketball team. Norris got inflamed over Cuban's support of a 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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Alternative Summary

Harrison is the founder of BCG Attorney Search and several companies in the legal employment space that collectively gets thousands of attorneys jobs each year. Harrison’s writings about attorney careers and placement attract millions of reads each year. Harrison is widely considered the most successful recruiter in the United States and personally places multiple attorneys most weeks. His articles on legal search and placement are read by attorneys, law students and others millions of times per year.

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