Merit Systems Protection Board Update - ABA Federal Sector LEL Committee Presented by: Chris Burton, MSPB Office of Appeals Counsel - American Bar ...
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Merit Systems Protection
Board Update
ABA Federal Sector LEL Committee
Presented by:
Chris Burton, MSPB Office of Appeals Counsel
4/12/2021 1Status of the Board
• The Board consists of three members who are
Presidentially-appointed and Senate-confirmed. They
serve staggered 7-year terms.
• A quorum of at least two Board members is required for
the Board to issue final decisions and take other official
actions.
• Between March 2015 and January 2017, the Board
operated with two members.
• Between January 2017 and February 2019, the Board
operated with a single member and therefore lacked a
quorum.
• The Board has been without members since March 2019.
4/12/2021 2Status of the Board
• The Board’s administrative judges continue to issue
initial decisions under their delegated authority.
• The Clerk of the Board and Office of Appeals
Counsel continue to process petitions for review
and draft recommended decisions, but those
decisions remain on hold until at least two Board
members have been nominated and confirmed.
• At the time the Board lost its quorum in 2017, there
were about 500 petition for review cases pending
at headquarters. As of March 1, 2021, there were
just over 3,000.
4/12/2021 3Judicial Review of MSPB
Decisions
• Historically, review of Board decisions in non-mixed
cases (i.e., those without a discrimination claim)
occurred only at the U.S. Court of Appeals for the
Federal Circuit.
• However, beginning in 2012, certain whistleblower
cases could be appealed to the Federal Circuit “or
any court of appeals of competent jurisdiction.”
That all-circuit review was originally only for a 5-year
period, but it has since been made permanent.
4/12/2021 4Case Law Update
• The Board publishes a weekly case report
summarizing Board decisions (when applicable) as
well as court decisions reviewing Board decisions.
The reports are available via the Board’s website
(www.mspb.gov) under the Decisions menu.
4/12/2021 5Case Law Update
• Board Jurisdiction and Review
• Arbitration/Misc.
• VA Accountability and Whistleblower Protection Act
• Performance-based Actions
• Whistleblower Reprisal
4/12/2021 6Board Jurisdiction
and Review
Avalos v. HUD, 963 F.3d 1360 (Fed. Cir. 2020)
• Absent an absolute statutory prohibition on an appointment or
material fraud, misrepresentation, or concealment, an
appointee who meets the definition of “employee” under
chapter 75 has Board appeal rights even if his appointment
was improper.
• The petitioner’s prior service as a political appointee could be
counted towards completing 1 year of current continuous
service for purposes of determining Board appeal rights.
• The petitioner’s removal promoted the efficiency of the
service because it upheld the merit systems principles and
prevented the appearance of political influence in
competitive service appointments.
• Although the agency had the ability to seek a variation from
OPM in lieu of removal, it was not required to do so.
4/12/2021 7Board Jurisdiction
and Review
Dyer v. Air Force, 971 F.3d 1377 (Fed. Cir. 2020)
• The Board lacks jurisdiction to review the petitioner’s
removal from his dual-status military technician
position to the extent the termination was required
under 32 U.S.C. § 709 because he had been
separated from the National Guard.
4/12/2021 8Board Jurisdiction
and Review
Fuerst v. Air Force, 978 F.3d 369 (6th Cir. 2020)
• Jurisdiction to review the Board’s decision on a
petition for enforcement of its prior order lies in the
Federal Circuit, rather than district court, even if the
underlying case before the Board that led to the
order was a mixed case.
4/12/2021 9Board Jurisdiction
and Review
Esparraguera v. Army, 981 F.3d 1328 (Fed. Cir. 2020)
• The Board lacks authority to review performance-
based action removing a career employee from
her Senior Executive Service (SES) position and
placing her in another position outside the SES.
• Although the employee had certain procedural
protections, including an informal hearing before
the Board, there is no right to appeal the action to
the Board and the Board’s order referring the
record of the hearing to the agency did not
constitute a “final order or final decision” subject to
judicial review.
4/12/2021 10Board Jurisdiction
and Review
Moulton-Miller v. MSPB, 985 F.3d 864 (Fed. Cir. 2021)
• The Board lacked jurisdiction over the petitioner’s
reassignment from a supervisory to a nonsupervisory
position where she had completed less than 1 year
of competitive service in her supervisory role.
• The petitioner’s prior service in another agency
could not be tacked to her current service for
purposes of completing the supervisory
probationary period because the prior position was
not in the competitive service.
4/12/2021 11Arbitration/Misc.
Buffkin v. DOD, 957 F.3d 1327 (Fed. Cir. 2020)
• Where a collective bargaining agreement requires
the union to invoke arbitration within 20 days after
the last stage of the grievance procedure and the
parties’ practice was to hold a second mediation
session, the 20-day deadline ran from the end of the
second session, not the first. Thus, the request for
arbitration in this case, which was submitted
between the two mediation sessions, was actually
premature rather than late.
4/12/2021 12Arbitration/Misc.
Ramirez v. DHS, 975 F.3d 1342 (Fed. Cir. 2020)
• Arbitrator’s interim award finding that the agency had
not met its burden of proving that the petitioner was unfit
for service but deferring further action pending the
submission of further medical evidence was not a final
decision depriving the arbitrator of authority to take any
further action in the case.
• When an agency relies, directly or indirectly, on the
results of a psychological assessment in justifying an
employee’s removal, the agency must provide the
employee with a meaningful opportunity to review and
challenge the data, analysis, and results of that
assessment.
4/12/2021 13Arbitration/Misc.
Holmes v. USPS, 987 F.3d 1042 (Fed. Cir. 2021)
• The Board properly found that the agency proved
by preponderant evidence the petitioner
purchased marijuana from a coworker while on
duty on the basis of circumstantial evidence and
credibility determinations.
• The Board is not required to defer to arbitration
decisions in other cases. Thus, the fact that other
employees removed for the same offense later had
those removals mitigated by an arbitrator does not
mean the Board was required to do the same.
4/12/2021 14VA Accountability Act
Sayers v. DVA, 954 F.3d 1370 (Fed. Cir. 2020)
• Although 38 U.S.C. § 714(d)(2) bars the Board from
mitigating the penalty in an action under the Act,
the Board must consider the penalty as part of its
determination whether the decision of the
Secretary was supported by substantial evidence.
• The Secretary’s removal action in this case, which
was proposed after the passage of the Act but
based on actions occurring before such passage,
could not be affirmed without giving the Act
impermissible retroactive effect.
4/12/2021 15VA Accountability Act
Harrington v. DVA, 981 F.3d 1356 (Fed. Cir. 2020)
• The Board’s decision (issued pre-Sayers) did not include
any consideration of the penalty and was therefore
inconsistent with the holding in Sayers.
• Although the petitioner did not raise the issue of
retroactivity until after briefing before the court was
completed, under the unique circumstances of this
case, the court would not hold the petitioner to a strict
waiver.
• Because the remaining charges against the petitioner
depended on conduct predating the Act, his removal
under the Act could not be sustained.
4/12/2021 16VA Accountability Act
Brenner v. DVA, 990 F.3d 1313 (Fed. Cir. 2021)
• The Board’s review of a decision of the Secretary
under the Act includes consideration of the penalty
whether the actions is based on misconduct of
performance.
• An action may not be taken under the Act based
on performance or conduct occurring in whole or in
part before the passage of the Act.
4/12/2021 17Performance
Harris v. SEC, 972 F.3d 1307 (Fed. Cir. 2020)
• In a chapter 43 action, the agency must warn the
employee of inadequacies in performance that
occurred during the appraisal period. However, the
notice need not be issued during the appraisal
period in order to be valid.
• The agency’s actions before and during the PIP did
not demonstrate that the removal was
predetermined, and therefore the appellant did
have a meaningful opportunity to improve her
performance.
4/12/2021 18Performance
Braun v. HHS, 983 F.3d 1295 (Fed. Cir. 2020)
• Provision allowing “for cause” removal of Title 42 employees
encompasses serious deficiencies in the performance that
result in a loss of trust in the employee’s ability to carry out
research in accordance with agency policy.
• Agency policy requiring the de-tenuring of tenured scientists
before they could be removed for performance-based
reasons did not preclude a removal without de-tenuring under
the “for cause” provision.
• The petitioner’s due process rights were not violated where
the agency proposed his removal for negligent performance
but then relied on the Table of Penalties section regarding
violations of recognized professional or agency standards.
The petitioner was aware his removal was based on his failure
to comply with protocol.
4/12/2021 19Performance
Santos v. NASA, 990 F.3d 1355 (Fed. Cir. 2021)
• In defending a chapter 43 action, an agency must
prove that the employee’s unacceptable
performance “continued,” i.e., both that it was
unacceptable before the PIP and that it remained
so during the PIP.
• The fact that the petitioner’s supervisor was “very
patriotic” and thanked the petitioner for his military
service was insufficient to find that the petitioner’s
uniformed service was a substantial or motivating
factor in his removal.
4/12/2021 20Whistleblowing
Sistek v. DVA, 955 F.3d 948 (Fed. Cir. 2020)
• Retaliatory investigations, in and of themselves, do
not qualify as personnel actions under the WPA. A
retaliatory investigation, either on its own or in
conjunction with other actions, may qualify as a
personnel action if it rises to the level of a
“significant change in . . . working conditions.”
4/12/2021 21Whistleblowing
Higgins v. DVA, 955 F.3d 1347 (Fed. Cir. 2020)
• Administrative judge acted within his discretion by
excluding two of the petitioner’s proposed
witnesses despite the petitioner’s argument that
those witnesses had testimony relevant to the
agency’s institutional motive to retaliate.
4/12/2021 22Whistleblowing
Young v. MSPB, 961 F.3d 1323 (Fed. Cir. 2020)
• An Individual Right of Action (IRA) appeal cannot be a mixed
case and therefore jurisdiction to review the Board’s decision
in an IRA lies in the Federal Circuit (or other court of appeals of
competent jurisdiction).
• The petitioner’s vague and conclusory allegations of time and
attendance violations did not rise to the level of nonfrivolous
allegations of wrongdoing protected under the WPA.
• Allegations of retaliation for exercising a right under Title VII do
not fall within the scope of the WPA and are therefore not
proper subjects for an IRA appeal.
• Allegations that the agency failed to accommodate the
petitioner’s disability do not constitute allegations of a
substantial and specific danger to public health or safety.
4/12/2021 23Whistleblowing
Delgado v. DOJ, 880 F.3d 913,
amended on petition for rehearing,
979 F.3d 550 (7th Cir. 2020)
• An appellant’s failure to submit to the Board a copy of
the original OSC complaint with his appeal does not
justify dismissal of the appeal for failure to exhaust before
OSC.
• The petitioner’s allegation that he informed his
supervisors that a coworker may have committed perjury
was sufficient to be a protected disclosure under 5 U.S.C.
§ 2302(b)(8).
• The petitioner satisfied the WPA’s exhaustion requirement
by presenting OSC with sufficient information to permit a
legally sophisticated reader to understand his charge of
retaliation and to investigate it further.
4/12/2021 24Whistleblowing
Baca v. Army, 983 F.3d 1131 (10th Cir. 2020)
• The court of appeals has jurisdiction over appeals
from Board decisions in whistleblower reprisal cases,
whether the reprisal claim arises in an IRA or appeal
or as an affirmative defense in an otherwise
appealable action appeal.
• Attempting to intimidate a witness into providing a
false statement is not protected as “lawfully
assisting” another in exercising his right as a
whistleblower.
4/12/2021 25Whistleblowing
Hessami v. MSPB, 979 F.3d 1362 (Fed. Cir. 2020)
• Whether the appellant has nonfrivolously alleged
protected disclosures that contributed to a
personnel action must be determined based on
whether the employee alleged sufficient factual
matter, accepted as true, to state a claim that is
plausible on its face, and the Board may not deny
jurisdiction by crediting the agency’s interpretation
of the evidence as to whether the alleged
disclosures fell within the protected categories or
whether the disclosures were a contributing factor
to an adverse personnel action.
4/12/2021 26You can also read
