MSPB Issues First Precedential Decision in 5 Years in Jurisdiction of Employee’s Appeal
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.
On March 24, 2022, the Merit Systems Protection Board (MSPB) issued a precedential opinion determining that it did not have jurisdiction over an employee’s appeal.
The Department of the Army appointed the appellant to the position of Nurse on June 13, 2016. The first Standard Form 50 (SF-50) that the Agency issued stated that the appointment was subject to a 1-year probationary period. The Agency then issued a corrected SF-50 indicating that the probation period was two years.
Nearly a year later, in a June 9, 2017 letter, the Agency stated that it was terminating the appellant. Then, it effectuated her termination on July 10, 2017, which was just over one year after her initial appointment.
The appellant filed an appeal asserting that her termination was improper, and an administrative judge issued a decision reversing the agency’s termination action. Importantly, the judge determined that the appellant could be considered an employee with Board appeal rights under chapter 75 because she had completed one year of continuous service.
The Agency filed a petition for review with the Board, arguing that the Board lacks jurisdiction over appellant’s termination. Appellant responded and, additionally, she filed a petition for enforcement, questioning whether the agency provided relief as required by the interim relief order issued by the administrative judge.
The Board first addressed the question of enforcement of the administrative judge’s order. The appellant’s petition for enforcement asserted that the Agency should provide her with back pay from the effective date of her termination. The Board noted that the appellant’s petition for enforcement was improper because the Board’s regulations do not allow for a petition for enforcement of an interim relief order. Instead, the Board examined whether the Agency submitted evidence of compliance with the interim relief order. It explained that, when the employee is the prevailing party, interim relief is ordered, and “a petition for review is filed, an agency is required to pay back pay and associated benefits from the date on which the initial decision is issued.”
Here, the Board determined that the Agency showed compliance with the interim relief order because it submitted evidence of an email instructing the appellant to return to duty as well as an SF-52 reflecting her reinstatement to duty on the day that the initial decision was issued. As such, the Board denied the appellant’s request for additional back pay and benefits.
The Board then addressed whether it had jurisdiction over the appeal. According to 5 U.S.C. Section 7511(a)(1), an individual appointed to a competitive-service position is an employee with appeal rights if she “is not serving a probationary . . . period under an initial appointment,” or she “has completed 1 year of current continuous service.” The National Defense Authorization Act for Fiscal Year 2016 (NDAA 2016) added an exception to the definition of an employee, though. It provided that “individuals appointed to a permanent competitive-service position at the Department of Defense were subject to a 2-year probationary period and only qualified as an ‘employee’ under” Section 7511(a)(1) after completing two years of continuous service.” Although the NDAA 2016’s 2-year probationary period for Department of Defense employees was later repealed, the repeal only applies to appointments made on or after December 31, 2022.
The Board stated that the administrative judge failed to recognize this exception to the definition of “employee” and, therefore, erroneously determined that the appellant had appeal rights. The appellant had not yet completed a 2-year probation period, and she had not completed two years of continuous service at the time that she was terminated. Further, because the appellant was appointed on June 13, 2016, before the NDAA 2016 was repealed, she was subject to the 2-year probationary period requirement to become classified as an “employee.” Therefore, the Board concluded that the “controlling statutes clearly establish that the threshold for the appellant to become a permanent competitive-service employee with chapter 75 appeal rights was 2 years” and it vacated the initial decision and dismissed the appeal for lack of jurisdiction.
Find the full case here: Bryant v. Department of the Army.
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