Federal Employee Appeals Board Explains Corrective Action Options for Term Appointees
This case law update was written by Victoria E. Grieshammer, an attorney at the law firm of Shaw Bransford & Roth, where since 2021 she has represented federal officials and employees in all aspects of federal personnel employment law. Ms. Grieshammer also advises federal agencies and employers on employment issues, such as proposed disciplinary actions and other employment-related litigation.
When a federal employee is improperly removed from service, the Merit Systems Protection Board (the Board, MSPB) has the ability to order corrective action. In this opinion, the Board clarified how Board-ordered corrective action should be applied to term appointees.
In 2011, the Department of the Army hired the appellant for a term appointment not to exceed 4 years. Then, in May 2012, the agency selected the appellant for a new position, which entitled her to a new 4-year term. In 2013, the appellant filed an individual right of action (IRA) appeal with the Board, alleging that she was reassigned and constructively removed from her position in reprisal for making protected disclosures. After conducting a hearing, the administrative judge found in favor of the appellant. As a result, the judge ordered corrective action, including requiring the agency to “cancel the reassignment and removal and to retroactively restore the appellant effective November 30, 2012.”
The appellant subsequently filed a petition for enforcement alleging that the agency violated the corrective action. She argued that the agency should have restored her for the 42 months remaining on her 4-year term. Appellant also alleged that, had she continued in her term appointment, she would have been selected for a permanent position. In response, the agency argued that there were 10 vacancies for permanent positions in appellant’s line of work that had been announced, but that she did not apply for any of them. The administrative judge sided with the appellant and ordered the agency to reconstruct the selection process for the vacancies. The agency did not submit evidence that it attempted to reconstruct the selection process, though, and the administrative judge then imposed sanctions on the agency. The administrative judge subsequently issued a compliance initial decision finding that the agency failed to establish its compliance with the order by failing to reinstate the appellant to a permanent position. Lastly, the judge ordered the agency to place the appellant in a permanent position for which she qualifies. The agency filed a petition for review.
On appeal, the Board sided with the agency and determined it complied with the corrective action ordered as a result of the IRA appeal. In its opinion, the Board focused on whether the agency was compliant with the retroactive restoration-to-duty portion of the order.
Board-ordered corrective action may include that the individual be placed in the nearest possible position she would have been in had the prohibited personnel practice not occurred. The initial decision ordered the agency to “retroactively restore the appellant, effective November 30, 2012.” The position identified by the administrative judge during the compliance proceedings, though, did not issue a vacancy announcement until October 2014. Because the vacancy did not exist at the time of the retroactivity date of November 2012 set by the order, it would have been impossible for the order to have required the agency to appoint appellant to this specific position.
Next, the Board addressed whether the appellant was entitled to obtain a permanent position as relief. “To obtain a promotion as part of an order granting final relief, an appellant must identify a law mandating promotion, or clearly establish that she would have been promoted during the relevant time period.” Not only was there no relevant law mandating promotion in appellant’s case, “the very nature of a term appointment is that it expires by a date certain as a basic condition for appointment.” Therefore, the agency acted properly in in separating the appellant when her term expired instead of appointing her to another position. The Board additionally agreed with the agency that the administrative judge should not have ordered it to reconstruct the hiring process for the aforementioned 10 vacancies. Instead, the Board stated that the appellant should have attempted to apply and, if she was not selected, include the agency’s failure to appoint her as a personal action in another whistleblower reprisal claim.
Lastly, appellant also argued that she was entitled to serve the remaining 42 months of her 2-year appointment. Here, the initial decision did not become final until after the appellant’s term had expired. “[B]y the express nature of a term appointment, an appellant has no right to continued employment” once the term has ended. Additionally, appellant accepted back pay for the 42 months that she did not serve. The Board reasoned that, if appellant were to be reinstated and awarded backpay, she would benefit twice from the order for corrective action.
For these reasons, the Board granted the agency’s petition for review, found the agency in compliance, and dismissed the appellant’s petition for enforcement.
Find the full opinion here: Gharati v. Department of the Army.
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