MSPB Adopts New Element of Proof in Performance Removal Cases
In Lee v. Department of Veterans Affairs, the Merit Systems Protection Board (MSPB) added a new element of proof to sustain a performance-based adverse action with an appeal: accountablity prior to the PIP.
MSPB Confirms Lack of Jurisdiction Concerning EEO, Title VII Reprisal Cases
The Merit Systems Protection Board followed the precedent of several circuit courts in resolving that they are not the proper forum for allegations of retaliation for Title VII-related issues.
OSC Made “Preliminary Determination” Closing Your Case? No Response Needed Says MSPB
When an employee exhausts administrative remedies through the Office of Special Counsel (OSC), they gain the right to appeal directly to the Merit Systems Protection Board (MSPB).
MSPB Rules Employee Charged with Falsification in the Hiring Process Intended to Mislead
The Office of Personnel Management (OPM) instructed the Army to separate an employee from service after a probe found falsified documents during the hiring process.
Federal Employee Appeals Board Finds Army Retaliated Against Whistleblower
The Merit Systems Protection Board holds the Army retaliated against a widow of a service member in it's first precedential decision on whistleblower protection since regaining a quorum.
MSPB Issues First Precedential Decision in 5 Years in Jurisdiction of Employee’s Appeal
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.
MSPB Imposes Issue Exhaustion Requirement in Appointments Clause Case
The Merit Systems Protection Board (MSPB) has broken from the U.S. Supreme Court’s recent decision in Carr v. Saul, holding its adversarial nature of proceedings requires issue exhaustion.
Federal Employee Appeals Can Resume as MSPB Obtains First Quorum in 5 Years
With two of the three seats on the Merit Systems Protection Board (MSPB) confirmed, federal employees who are looking for an appeal may not have long to wait for a resolution.
Justice Delayed is Justice Denied
There are federal employees who spent the five years the Merit Systems Protection Board (MSPB) went without a quorum waiting, with their livelihoods damaged, home lives disrupted.
Federal Circuit Rejects Perceived Whistleblowing Claim
The Merit Systems Protection Board (MSPB) has long recognized claims where the employee has not made a protected disclosure, where supervisors perceive the employee to be a whistleblower.
Federal Circuit Disputes VA’s Interpretation of 2017 “Accountability” Law
In two opinions issued on August 12, 2021, the United States Court of Appeals for the Federal Circuit found that the Department of Veterans Affairs erroneously interpreted the provisions of the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 when disciplining its employees. The purpose of the 2017 law, codified at 38 U.S.C. § 714, was to provide for expedited discipline of VA employees, strip MSPB of its authority to mitigate the VA’s chosen penalty, and to impose a less rigorous burden of proof on the agency at the appellate level than a traditional MSPB appeal.
Feds Deserve Due Process
On paper, the Merit Systems Protection Board (MSPB) is an independent, quasi-judicial Federal agency that exists to hear appeals from federal employees who are subjected to adverse actions by their agency; for example, a whistleblower who was subjected to a suspension or demotion as a result of their actions would appeal their case to the MSPB.
MSPB Releases Research Brief: Agency Leader Responsibilities Related to Prohibited Personnel Practices
The Merit Systems Protection Board (MSPB) recently released a research brief on Agency Leader Responsibilities Related to Prohibited Personnel Practices (PPPs). The brief directs the head of each agency to engage in certain activities to prevent the occurrence of PPPs.
MSPB Report: WGI Denials Related to Performance Rating Structure, Type of Work, and Agency Culture
The frequency of within-grade increases (WGI) is related to agency appraisal systems, the nature of an employee’s work, and the agency’s performance management culture and guidance, the U.S. Merit Systems Protection Board (MSPB) recently reported.
Connolly, Hice Request President Biden Fill Seats on MSPB
In an April 5, 2021 letter to President Joe Biden, Representative Gerald Connolly (D-VA), Chairman of the Subcommittee on Government Operations, and Representative Jody Hice (R-GA), Ranking Member of the Subcommittee on Government Operations, requested that the president nominate qualified board members to the Merit Systems Protection Board (MSPB).
Agencies Must Prove Pre-PIP Unacceptable Performance in Federal Circuit Decision
Before a federal employee can be terminated for unacceptable performance, the employing agency must provide the employee with an opportunity to demonstrate acceptable performance.
Penalties Mitigated in Arbitration, after an Agency Decision, Do Not Establish Disparate Treatment
McKenzie Holmes was a U.S. Postal Service (“USPS”) employee from 1989, until his removal in 2018. At the time of his removal, he worked as a city carrier at the Fort Dearborn Station in Chicago.
MSPB Evaluates Use of Direct Hire Authority in Federal Agencies
The Merit Systems Protection Board (MSPB) released a report evaluating federal agencies’ use of Direct-Hire Authorities (DHAs) when filling critical roles in government, including medical, information technology, and acquisition occupations.