When Experience Meets Advocacy: The Nicole Nualart Case and the Power of Relentless Representation

If you’re a federal employee, a legal professional, or someone who knows the stakes in federal employment law, the recent Merit Systems Protection Board (MSPB) decision in Nicole Nualart v. Department of Homeland Security is a case you’ll want to study. Not just for the legal twists and turns, but for what it says about the value of having a seasoned advocate in your corner—especially when your career is on the line.

The Backstory: A Trusted Career Suddenly at Risk

Nicole Nualart’s federal journey began in 2002. By late 2021, she had climbed the ranks to become a Senior Special Agent in the Office of Inspector General, Office of Investigations. Her daily work? Investigating criminal misconduct, managing sensitive case files, and upholding the integrity of her agency. She was the kind of agent you want on your team—trusted, experienced, and recently promoted.

But in the summer of 2022, everything changed. Nualart was tasked with digitizing case files—a high-pressure project with tight deadlines, all while she was on light duty for medical reasons. Within weeks, her supervisor, Joseph Kenney, flagged issues: missing files, shredded documents, and incomplete uploads. The agency moved fast. By August, Nualart was facing a proposed removal, accused of lack of candor, failure to follow instructions, and failure to follow procedures—a laundry list that could end a career.

The Legal Showdown: Advocacy That Makes a Difference

This is where great representation steps in. Nicole Nualart turned to Morris Fischer, Esquire—a move that would prove pivotal. The agency, represented by Daniel Burkhart, Esquire, brought its own formidable case. The matter landed before Administrative Judge Paul DiTomasso for a two-day hearing that was anything but routine.

The agency’s case was exhaustive: nine separate specifications for failure to follow instructions, supported by audit notes, emails, and witness testimony. Supervisors Kenney and Rachel Neil detailed the operational impact, including a particularly damaging incident where a shredded file supposedly left the agency unable to respond to a Congressional request.

But Nualart’s defense, led by us, was equally robust. She owned up to some mistakes—yes, she shredded files, and yes, some cases were mislabeled. But our advocacy brought out the bigger picture: the lack of training, the rushed and confusing rollout of the digitization project, and the ambiguity in instructions. Nualart’s testimony was calm, credible, and backed by documentation. She didn’t dodge responsibility; she explained the context, acknowledged her need to learn, and demonstrated her commitment to the agency’s mission.

The Decision: Legal Precision Meets Human Understanding

Judge DiTomasso’s decision is a study in balanced, thoughtful adjudication. Of the nine “failure to follow instructions” charges, only three were sustained. The more serious “lack of candor” charge? Not proven. The judge noted that Nualart was removed from the assignment before the project deadline—she never had a chance to fix her work. He also highlighted her spotless 20-year record, her recent promotion, and her clear rehabilitative potential.

The result: Nualart’s proposed removal was mitigated to a 21-day suspension. She was ordered reinstated with back pay. Her claim of EEO retaliation was found unsupported, but the process was thorough, fair, and transparent.

Why This Case Resonates: The Power of Great Representation

This case is a masterclass in why you want a skilled advocate when the stakes are high. The agency’s attorneys did their job—methodical, fact-driven, and diligent. But it was our representation that ensured Nualart’s story was fully told, that the human factors weren’t lost in the paperwork, and that the process remained fair and proportional.

For federal employees, this is a reminder: the system can work, but only if you have someone who knows how to navigate it. For legal professionals, it’s a case study in the value of preparation, credibility, and strategic advocacy. And for anyone who cares about government accountability, it’s proof that the MSPB process, when both sides are well-represented, can deliver just outcomes—even in the most complex cases.

Bottom line: When your career is on the line, there’s no substitute for great representation. The Nicole Nualart case is proof that experience, preparation, and advocacy can make all the difference. If you want someone in your corner who knows how to fight—and win—when it matters most, you know where to turn. You turn to us.