U.S. Merit Systems Protection Board. National Association of Government Employees

Transcription

1 U.S. Merit Systems Protection Board National Association of Government Employees S u s a n T s u i G r u n d m a n n C h a i r m a n, M e r i t S y s t e m s P r o t e c t i o n B o a r d D e c e m b e r 3,

2 Regional Processing Fiscal Year 2013 Total Cases Received in Regional & Field Offices 6,259 Average processing time 93 days See Annual Report on MPSB public website at

3 Representation of 32,763 Docketed Cases 51 private attys 6,218 union reps 333 other reps 6,602 total # of appellants who are represented As of 11/15/2013: 32,692 sequestration furloughs 71 shutdown furloughs 32,763 total furlough cases received 281 dismissed; 60 decided 26,161 pro se

4 Burden of Proof for Furloughs OPM defines furlough as the placing of an employee in a temporary status without duties and pay because of lack of work or funds or other nondisciplinary reasons. 5 C.F.R ; see 5 U.S.C (a)(5). A furlough of 30 days or less is appealable to the Board as an adverse action. See 5 U.S.C (5). Agency must meet the burden of showing that its actions promoted the efficiency of the service. Agency can meet this burden by demonstrating that the adverse action was a reasonable management solution to financial restrictions and that management selected fairly the employees to furlough. Clark v. OPM, 24 M.S.P.R. 224 (1984). See 5 U.S.C (a); see also 5 C.F.R (b)(2)

5 Debra J. Chandler v. Dep t of Treasury, 2013 MSPB 74 Information is discoverable if it is related to The basis for conducting the furlough Treatment of similarly situated employees Affirmative defenses Information is not discoverable if it is related to Agency spending decisions generally Selection of furlough days Alternative ways that the agency might have structure the furlough

6 Next Steps for Furlough Appeals Initial Acknowledgement Orders sent in September 2013 DoD Component Master Files posted on mspb.gov Furlough Procedures Orders sent to the parties Designation of representative Service and filing requirements Agency file requirements Discovery: 40 calendar days from Order; responses due 20 days from service of discovery Motions Identification of affirmative defenses Scheduling Order: If a hearing is requested, it will be scheduled approximately 90 days from the date of the Procedures Order

7 The Life of an MSPB Appeal Initial Appeal Appeal filed in regional or field office AJ assigned Appeal acknowledged Mediation or Settlement offered Pre-Hearing Conference Held Hearing conducted Initial Decision Issued Second Level Review Petition for Review (PFR) filed at HQ PFR received by Board Clerk PFR certified to Appeals Counsel Legal research conducted Decision recommended to the Board Members Case reviewed independently by each Board Member Decision issued by the Clerk Post MSPB Review Board decisions may be appealed to the U.S. Court of Appeals for the Federal Circuit (CAFC) Board decisions involving issues of discrimination ( mixed cases ) may be brought to the U.S. District Court of appeals to the EEOC Decisions of the CAFC may be appealed to the U.S. Supreme Court

8 Recent Significant Cases Kaplan v. Conyers, No (Fed. Cir. 2013) (en banc). The Board lacks jurisdiction to review the merits of an agency s decision to suspend or revoke an employee s eligibility to occupy a sensitive position. no authority to review adverse actions associated with loss of eligibility to hold a non-critical sensitive position. Gargiulo v. DHS, 727 F. 2d (Fed. Cir. 2013). Even though the Board cannot review the merits of a security clearance determination, the Board will still review whether the appellant received due process and whether the agency committed harmful procedural error when it assesses an adverse action. Ward v. USPS, 634 F.3 rd 1274 (Fed. Cir. 2011). When a deciding official receives new and material penalty related information through ex parte communications, the appellant is entitled to a brand new constitutionally correct hearing.

9 Mitigation of Penalties Williams v. SSA, 586 F.3d 1365 (Fed. Cir. 2009). Overruled Board precedent on comparators in different command chains. Taylor v. DVA, 112 M.S.P.R. 423 (2009). Removal mitigated to 30- day suspension. Woebcke v. DHS, 114 M.S.P.R. 100 (2010). Affirmed mitigation of removal to 14-day suspension. Lewis v. DVA, 113 M.S.P.R. 657 (2010). Removal mitigated to 30-day suspension. Boucher v. USPS, 118 M.S.P.R. 640 (2012). Removal mitigated to 30-day suspension.

10 Contacting MSPB By Phone or ; V/TDD: By Mail U.S. Merit Systems Protection Board 1615 M Street, NW, Washington, DC By E-Appeal Online Open.gov mspb@mspb.gov MSPB Decisions ListServ Click on MSPB Decisions tab on MSPB homepage and Subscribe to MSPB Decisions ListServ in left margin. MSPB Studies ListServ Click on MSPB Studies tab on MSPB homepage and Subscribe to MSPB Studies Listserv in left margin.