NEW LAWS, LACK OF QUORUM, AND ANTICIPATED REDUCTIONS

Here are some highlights copied from the U.S. MERIT SYSTEMS PROTECTION BOARD FISCAL YEAR 2017 ANNUAL REPORT dated January 19, 2018.

Although the biggest challenge MSPB faces currently is the lack of a quorum, MSPB also must be prepared to face external factors such as changes in law and jurisdiction, and Government wide reorganization leading to budget and workforce reductions. These changes could impact our appeals workload, and emphasize the need for a strong merit systems studies program. We also have internal challenges including the number of employees eligible to retire and the need to improve and modernize our information technology and information services functions. These issues are briefly summarized here. Due to a lack of a quorum, the Board may be unable to fully address all of these issues. MESSAGE FROM THE VICE CHAIRMAN. Vice Chairman Mark A. Robbins Vice Chairman January 19, 2018

LACK OF QUORUM.

“The lack of a quorum prevents the Board from issuing final decisions in [Petitions for Review, or appeals from Administrative Judge decisions] PFRs and other cases filed at [Headquarters] HQ, such as requests for enforcement and for review of OPM regulations.”

Also see, the law for authority to provide for extensions of OSC stay requests under 5 U.S.C. § 1214 when MSPB lacks a quorum or Board members. The legislation provides authorization, in the event that MSPB lacks a quorum, for any remaining member of the Board who has been confirmed by the Senate, to grant an extension of a stay of a personnel action upon request by OSC. Pub. L 115-42, June 27, 2017.

OTHER LEGISLATIVE AND CONGRESSIONAL RELATIONS ACTIVITY.

National Defense Authorization Act (NDAA) of 2017 (S. 2943). Enacted on December 23, 2016, one provision grants MSPB appeal rights to dual status military technicians when the appeal concerns certain activities (e.g., reductions is force (RIFs), adverse actions, and other unspecified activities) that occurred when the technician was not in military pay status and when the issue does not involve fitness for duty in the reserve component. NDAA for FY 2017, Pub. L. 114-328 § 512 (gives appeal rights to military technicians), § 1111 (repeals 180-day waiver).
Another provision grants MSPB appeal rights to a former employee to challenge an agency’s decision to place a notation of an adverse investigative or administrative finding in his or her official personnel file.

The NDAA made changes to the definitions and limits of administrative leave applicable to all Federal employees.

The law also repeals the waiver of the 180-day waiting period after retirement before retired members of the armed forces may be appointed to DoD civilian positions.

Follow the Rules Act (H.R. 657). This bill amends 5 U.S.C. § 2302 to expand the prohibited personnel practice established in 2302(b)(9)(D) (the so-called “right to disobey” provision) to include the right to disobey orders that violate rules and regulations (as opposed to only statutes). This effectively overrules the U.S. Court of Appeals for the Federal Circuit’s decision in Rainey v. MSPB, 824 F.3d 1359 (Fed. Cir. 2016), which held, based on the canons of statutory construction, that a federal employee has no right to disobey an order he or she believes violates a federal regulation. Pub. L. 115-40, June 14, 2017.

Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (S. 1094). This bill eliminates MSPB appeal rights for Senior Executive Service (SES) employees of the Department of Veterans Affairs (VA) who have been suspended, demoted, or removed from Federal service for performance or misconduct. The bill retains MSPB appeal rights for non-SES employees under an expedited review process. MSPB AJs are required to issue decisions within 180 days after the appeal is filed. The AJ’s decision may be appealed to the three-member Board. The bill does not limit the amount of time the Board may take to issue a decision. The Board’s decision may be appealed to the U.S. Court of Appeals for the Federal Circuit. Pub. L. 115-41, June 23, 2017.

The Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017. This law creates a 14th [prohibited personnel practice] PPP prohibiting access to medical records of another employee or an applicant for employment as a part of, or otherwise in furtherance of, any conduct described in [prohibited personnel practice] PPPs 1 through 13. In addition, this law (1) requires agency heads to propose disciplinary action against supervisors who have engaged in Whistleblower retaliation, (2) provides certain whistleblower protections to probationary Federal employees, (3) provides guidelines to enhance Federal employee awareness of Federal whistleblower protections, and (4) enhances access of information by the OSC. Pub. L.115-73, October 26, 2017.

ANTICIPATED CASES DUE TO GOVERNMENT WIDE BUDGET REDUCTIONS.

The Board also writes in its annual report that:

“The Administration’s Government Reform efforts will likely lead to Government wide budget and workforce reductions beginning as early as late FY 2018, and increasing in later years. Workforce reductions could mean an increase in appeals involving furloughs, RIFs, or early retirements through Voluntary Early Retirement Authority (VERA) and Voluntary Separation Incentive Payment (VSIP). Legislative changes and budget reductions not only affect [MSPB] our adjudication functions, they also emphasize the need for strong merit studies and OPM review programs to ensure the Federal workforce continues to be managed under the [Merit Systems Principles] MSPs and free from [Prohibited Personnel Practices] PPPs. Citing to https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-22.pdf.

COMMENTS ON THESE BILLS BY BILL.

Some interesting new laws but the lack of quorum makes appeals to the full Board and enforcement interesting, if not problematic before the MSPB. The U.S. Court of Appeals for the Federal Circuit and U.S. District Court are options in some cases, but expensive.

Know when to consult an attorney, and before it is too late. For example, I copied from the MSPB report about the Follow the Rules Act, but this rule will be interesting in its application. Be very careful before disobeying orders of your superiors. This provision does not create a safe house for insubordination. Also, some Prohibited Personnel Protections are added. These provisions are meant to protect against retaliation so consider carefully your actions in advance and document them correctly before taking on your agency or superiors.