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U.S. MERIT SYSTEMS PROTECTION BOARD:
OVERVIEW OF JURISDICTION AND PROCEDURE
SUSAN TSUI GRUNDMANN
CHAIRMAN, U.S. MERIT SYSTEMS PROTECTION BOARD
I. ORIGINAL JURISDICTION
1.
Actions brought by the Special Counsel:
(a) Petition for corrective action in the case of a prohibited personnel
practice; Special Counsel bears the burden of proof; evidentiary hearing
convened when there are genuine disputes of material fact – 5 U.S.C. §§ 1214,
2302
(b) Petition for disciplinary action against an individual who committed a
prohibited personnel practice or “knowingly and willfully” refused to comply with
an order of the MSPB; Special Counsel bears the burden of proof; evidentiary
hearing convened when there are genuine disputes of material fact – 5 U.S.C.
§§ 1215, 2302
(c) Complaint for violation of Hatch Act prohibitions against political
activity by federal employees and certain state and local officers; Special
Counsel bears the burden of proof; evidentiary hearing convened when there
are genuine disputes of material fact – 5 U.S.C. §§ 1216, 1501-1508, 7321-7326
(d)
Request for a stay of a personnel action pending the Special
Counsel’s completion of an investigation into a prohibited personnel practice
complaint – 5 U.S.C. § 1214(b)
2.
Actions against administrative law judges; employing agency bears the
burden of proof; evidentiary hearing ordinarily held upon request – 5 U.S.C.
§ 7521
3.
Informal hearings for career Senior Executives removed from the SES for
performance reasons – 5 U.S.C. § 3592
4.
Review of regulations promulgated by Office of Personnel Management;
Board may declare a regulation invalid on its face or as implemented if the
regulation requires commission of a prohibited personnel practice – 5 U.S.C.
§ 1204(a)(4), (f)
II. APPELLATE JURISDICTION
A. JURISDICTION UNDER THE
CIVIL SERVICE REFORM ACT OF 1978
With exceptions noted below, an appeal brought under a CSRA-based law or
regulation is governed by 5 U.S.C. § 7701, which provides in relevant part that:
•
The agency bears the burden of proof, by preponderant evidence, on the
merits of the personnel action
•
Regardless of whether the agency meets its burden, the personnel action
shall not be sustained if the appellant shows that -⇒ the agency committed harmful procedural error in arriving at its
decision;
⇒ the decision was based on a prohibited personnel practice; or
⇒ the decision was not in accordance with law or violated the appellant’s
due process rights
•
The MSPB’s regulatory 30-day filing deadline applies. 5 C.F.R. § 1201.22(b).
•
The appellant has a right to an evidentiary hearing on the merits, on request.
5 U.S.C. § 7701(a). Ordinarily the Board may not decide a case arising under
its CSRA-based jurisdiction without an evidentiary hearing when one has
been requested, regardless of whether there are any genuine disputes of
material fact. Crispin v. Department of Commerce , 732 F.2d 919, 922 (Fed.
Cir. 1984).
•
In most instances, jurisdiction over a CSRA-based appeal must be proven by
preponderant evidence. The MSPB may not take jurisdiction over an appeal
governed by 5 U.S.C. § 7701 based on a well-pleaded complaint. Garcia v.
Department of Homeland Security , 437 F.3d 1322 (Fed. Cir. 2006) (en banc).
The following personnel actions are appealable under a CSRA-based law or
regulation:
1.
ADVERSE ACTIONS. Specifically -Removal
Suspension of more than 14 days
Reduction in grade
Reduction in pay
Furlough of 30 days or fewer
Standard: An adverse action may be taken only for such cause as promotes the
efficiency of the service. See 5 U.S.C. §§ 7512, 7513.
Who may appeal an adverse action? Generally:
(i) an individual in the competitive service who has completed probation,
or who has at least one year of current continuous service under a nontemporary appointment;
(ii) a preference-eligible veteran in the excepted service who has
completed at least one year of current continuous service in the same position
or similar ones; and
(iii) a non-preference eligible in the excepted service who has completed
two years of current continuous service in the same position or similar ones
under a non-temporary appointment, or who has completed probation under an
initial appointment pending establishment of a register.
See 5 U.S.C. § 7511(a)(1). [Many exclusions from adverse action appeal-rights
coverage, such as political appointees, annuitants, individuals employed in the
intelligence community. See 5 U.S.C. § 7511(b) for complete list.]
-- CONSTRUCTIVE ADVERSE ACTIONS
Constructive removal: A retirement or resignation, although presumed
voluntary, is deemed an appealable constructive removal if it resulted from
duress, coercion, or misinformation, or if the agency refused to allow an
employee to withdraw his or her resignation or retirement before its effective
date without a valid reason. See, e.g., Schultz v. U.S. Navy , 810 F.2d 1133,
1136-37 (Fed. Cir. 1987); Scharf v. Department of the Air Force , 710 F.2d 1572,
1574-75 (Fed. Cir. 1983); Olsen v. Department of the Army , 65 M.S.P.R. 60, 63
(1994). A disability retirement may be deemed involuntary if the agency
unjustifiably denied an employee’s request for accommodation prior to retiring.
See, e.g., Lorenz v. U.S. Postal Service , 84 M.S.P.R. 670 (2000).
Constructive suspension: An appealable constructive suspension occurs
when an employee is forced to take sick or annual leave, Minnis v. Veterans
Administration , 42 M.S.P.R. 460, 462 (1989); or when an employee is
involuntarily placed in non-pay, non-duty status, Gallegos v. Department of the
Interior , 70 M.S.P.R. 483 (1996); or when an employee who is absent because
of a medical condition asks to return with altered duties and the agency has
suitable work available which it is obligated to offer under law, regulation, or
CBA, Baker v. U.S. Postal Service , 71 M.S.P.R. 680, 692-93 (1996).
Constructive reduction in grade: An employee is deemed to have suffered
a reduction in grade where he was reassigned from a position which, due to
issuance of a new classification standard or correction of a classification error,
was worth a higher grade; the employee met the legal and qualification
requirements for promotion to the higher grade; and he was permanently
reassigned to a position classified at a grade level lower than the grade level to
which he would otherwise have been promoted. Russell v. Department of the
Navy , 6 M.S.P.R. 698, 711 (1981).
2.
REDUCTION
IN
GRADE
OR
REMOVAL
FOR
UNACCEPTABLE
PERFORMANCE. See 5 U.S.C. § 4303. In an appeal from a performancebased action, the agency must prove its case by substantial evidence. 5 U.S.C.
§ 7701(c)(1)(A). Unlike adverse action appeals under ch. 75, the MSPB may not
mitigate the penalty in a performance case.
Who may appeal an action based on poor performance? A preference eligible;
any employee in the competitive service; or an individual in the excepted service
who has adverse action appeal rights. 5 U.S.C. § 4303(e).
3.
SEPARATION, DEMOTION, OR FURLOUGH FOR MORE THAN 30 DAYS,
RESULTING FROM A REDUCTION IN FORCE [RIF]. See 5 C.F.R. Part 351. A
RIF is directed at positions, not particular employees; a RIF may not be taken
for personal cause. Lamell v. Armed Forces Retirement Home , 104 M.S.P.R.
413, ¶ 11 (2007).
Who may appeal a RIF action? Most employees serving under non-temporary
career-conditional appointments. See 5 C.F.R. Part 351, Subparts D & E.
4.
DECISIONS AFFECTING AN INDIVIDUAL’S RIGHTS OR INTERESTS UNDER
CIVIL SERVICE RETIREMENT SYSTEM (CSRS) OR FEDERAL EMPLOYEES’
RETIREMENT SYSTEM (FERS). See 5 U.S.C. §§ 8347, 8461.
Retirement cases are an exception the general rule that the government must
prove its case by preponderant evidence. The burden of proving entitlement to
retirement benefits is on the applicant / appellant. Cheeseman v. Office of
Personnel Management , 791 F.2d 138, 140-41 (Fed. Cir. 1986).
5.
DISQUALIFICATION OF AN APPOINTEE OR APPLICANT FOR EMPLOYMENT
IN THE COMPETITIVE SERVICE ON GROUNDS OF SUITABILITY. See 5 C.F.R.
Part 731.
6.
CLAIMS FOR FAILURE TO RESTORE OR IMPROPER RESTORATION
FOLLOWING ABSENCE DUE TO A COMPENSABLE INJURY.
See 5 U.S.C.
§ 8151; 5 C.F.R. § 353.304.
7.
CLAIMS FOR VIOLATION OF RIGHT TO REEMPLOYMENT FOLLOWING
ABSENCE FOR ACTIVE MILITARY DUTY OR OTHER UNIFORMED SERVICE. See
38 U.S.C. §§ 4312-4318, 4324; 5 C.F.R. § 353.211.
8.
CLAIMS FOR IMPROPER EMPLOYMENT PRACTICES IN EXAMINATION
FOR COMPETITIVE-SERVICE POSITIONS. See 5 C.F.R. Part 300A.
9.
WITHHOLDING OF WITHIN-GRADE
§ 5335(c); 5 C.F.R. § 531.410.
INCREASE.
See
5 U.S.C.
10. CLAIMS FOR VIOLATION OF REEMPLOYMENT PRIORITY RIGHTS. See
5 C.F.R. § 330.209.
11. REDUCTION IN FORCE ACTIONS, AND CERTAIN OTHER ACTIONS
TAKEN FOR PERSONAL CAUSE, AFFECTING A CAREER SENIOR EXECUTIVE.
See 5 U.S.C. §§ 3595, 7541-7543.
12. TERMINATION DURING PROBATION WHERE DISCRIMINATION BASED
ON MARITAL STATUS OR POLITICAL AFFILIATION IS CLAIMED, OR WHERE
TERMINATION IS FOR A PRE-APPOINTMENT REASON AND ADVANCE NOTICE
WAS NOT GIVEN. See 5 C.F.R. Parts 315H, 315I.
13. FAILURE TO REINSTATE OR REEMPLOY FOLLOWING SERVICE IN
OTHER ORGANIZATIONS UNDER LAWS REQUIRING REINSTATEMENT OR
REEMPLOYMENT. See 5 C.F.R. § 1201.3(a)(14)-(18).
14. REQUEST FOR REVIEW OF ARBITRATION AWARD, where the
individual was affected by an action appealable to the Board and claims
prohibited discrimination. See 5 U.S.C. § 7121(d).
B. SPECIALIZED JURISDICTION
1. WHISTLEBLOWER PROTECTION ACT (WPA)
The following personnel actions, although not directly appealable to the MSPB,
may be challenged in an individual right of action (IRA) appeal as having been
taken in retaliation for whistleblowing if the appellant first seeks corrective
action before the Office of Special Counsel and either 120 days passes or the
Special Counsel terminates its investigation:
Appointment
Promotion
Detail, transfer, or reassignment
Reinstatement
Restoration
Reemployment
Performance appraisal
Decisions concerning pay, benefits, awards, and certain decisions related
to training and education
Order to undergo psychiatric testing
Significant change in duties, responsibilities, or working conditions
See 5 U.S.C. §§ 2302(a)(2)(A), 1221. Failure to take or threatening to take any
of the actions listed above may also give rise to an IRA appeal.
•
Test for IRA jurisdiction: The Board has jurisdiction over an IRA appeal if the
•
Scope of IRA appeal: The only issue in an IRA appeal is whether the agency
•
Burden and standard of proof; affirmative defense:
•
Who may bring an IRA appeal? Most executive branch employees. Notable
•
Hearing: There is a right to an evidentiary hearing on the merits of an IRA
•
Deadline : An IRA appeal must be filed within 60 days of the date the Special
appellant has exhausted his or her administrative remedies before OSC and
makes nonfrivolous allegations that:
(1) He engaged in whistleblowing
activity by making a protected disclosure, and (2) the disclosure was a
contributing factor in the agency's decision to take or fail to take a personnel
action. Yunus v. Department of Veterans Affairs , 242 F.3d 1367, 1371 (Fed.
Cir. 2001).
committed whistleblower retaliation; the merits of the personnel action and
other issues identified in 5 U.S.C. § 7701 are not at issue.
The MSPB shall grant
corrective action if the appellant shows by preponderant evidence that
whistleblowing was a contributing factor in a personnel action, unless the
agency proves by clear and convincing evidence that it would have taken the
personnel action in the absence of the appellant’s whistleblowing. 5 U.S.C.
§ 2302(e).
exclusions are political appointees and certain employees engaged in
intelligence work. 5 U.S.C. § 2302(a)(2)(B), (C).
appeal. [Jurisdiction is determined on the pleadings.]
Counsel terminates its investigation. 5 U.S.C. § 1214(a)(3)(A).
2. UNIFORMED SERVICES EMPLOYMENT
AND REEMPLOYMENT RIGHTS ACT (USERRA)
There are two types of cases that arise under USERRA:
a. REEMPLOYMENT CASES
In a reemployment case, the appellant claims that an agency has not met its
obligations under 38 U.S.C. §§ 4312 - 4318 following the appellant’s absence
from civilian employment to perform uniformed service.
These cases are
governed by 5 U.S.C. § 7701 because they were within the Board’s jurisdiction
under CSRA-based regulations; the scope and burden of proof are as detailed
above for appellate jurisdiction cases under sec. II.A. above. See Clavin v.
U.S. Postal Service , 99 M.S.P.R. 619 (2005).
b. “PURE” USERRA CASES
In a pure USERRA case, which is also known by the shorthand label as a
“discrimination” case, the appellant claims that an agency has committed one of
seven actions that are prohibited if motivated by one of nine enumerated
reasons. Thus -A person who is a member of, applies to be a member of, performs,
has performed, applies to perform, or has an obligation to perform
service in a uniformed service shall not be denied initial
employment, reemployment, retention in employment, promotion,
or any benefit of employment by an employer on the basis of that
membership, application for membership, performance of service,
application for service, or obligation.
An employer may not discriminate in employment against or take
any adverse employment action against any person because such
person (1) has taken an action to enforce a protection afforded any
person under this chapter, (2) has testified or otherwise made a
statement in or in connection with any proceeding under this
chapter, (3) has assisted or otherwise participated in an
investigation under this chapter, or (4) has exercised a right
provided for in this chapter.
38 U.S.C. § 4311(a), (b).
•
Scope: In a pure USERRA case, the merits of the personnel action are not
before the MSPB, nor are other issues described in section 7701 (such as
prohibited personnel practices). The only question is whether the agency
violated section 4311. Bodus v. Department of the Air Force , 82 M.S.P.R.
508, 515, ¶ 14 (1999); 38 U.S.C. § 4324.
•
Burden of proof: In a pure USERRA case, the appellant bears the initial
•
Deadline: There is no deadline for filing a USERRA appeal.
Department of Justice , 89 M.S.P.R. 354, ¶ 6 (2001).
•
Hearing: The appellant has an unconditional right to an evidentiary hearing
on the merits of a USERRA claim. Kirkendall v. Department of the Army ,
burden of proving that an agency took an action based on an impermissible
motivation under USERRA, but the agency may defend by showing that it
would have taken the same action in any event. 38 U.S.C. § 4311(c); Wyatt
v. U.S. Postal Service , 101 M.S.P.R. 28 (2006).
Tierney v.
479 F.3d 830 (Fed. Cir. 2007) (en banc).
3. VETERANS EMPLOYMENT
OPPORTUNITIES ACT (VEOA)
Two kinds of VEOA cases:
a. The VEOA provides for a cause of action against a federal agency for
violation of an individual’s right to veterans’ preference in employment under
law or regulation. 5 U.S.C. §§ 3330a-3330c.
b. The VEOA provides for a cause of action against a federal agency for
violating the right of preference eligibles and certain other honorably discharged
veterans to compete for positions under merit promotion when the agency is
accepting applications outside its workforce. 5 U.S.C. § 3304(f).
In either kind of case:
•
Exhaustion: Before bringing an appeal to the MSPB, the individual must first
•
Deadline: A DoL complaint must be filed within 60 days of the alleged
•
Burden of proof: The appellant bears the burden of proof on the merits of a
VEOA appeal. Dale v. Department of Veterans Affairs , 102 M.S.P.R. 646,
file a complaint with the Department of Labor and exhaust proceedings
there. 5 U.S.C. § 3330a.
violation. An MSPB appeal must be filed within 15 days of DoL’s resolution.
5 U.S.C. § 3330a(a)(2)(A), (d)(1).
¶ 10 (2006).
•
Scope: The only issues in a VEOA case are whether the appellant’s right to
•
Hearing: The MSPB may dispose of a VEOA case without an evidentiary
hearing, when there is no genuine dispute of material fact.
Davis v.
Department of Defense , 105 M.S.P.R. 604, ¶ 12 (2007).
veterans’ preference or right to compete were violated. The merits of the
personnel action and other claims (e.g., prohibited personnel practices) are
not before the MSPB. See Ruffin v. Department of the Treasury , 89 M.S.P.R.
396, ¶¶ 10-12 (2001).