Federal Manager's Daily Report

A federal appeals court has affirmed that the informal hearings that while the MSPB may conduct regarding disciplinary actions against SES members on performance grounds, the merit board has no authority to overturn those agency decisions.

The case before the Federal Circuit Court of Appeals involved a section of civil service law stating a career senior executive removed for performance reasons may “appear and present arguments” at an “informal hearing” before the MSPB. The MSPB conducted such a hearing and presented the resulting information back to the employee’s agency and to the OPM and OSC as well.

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The employee asked the court to review the case, saying that restricted process amounted to a deprivation of constitutionally protected property and liberty interests without due process.

The court, though, said the law provides “an opportunity to be heard, not an adversarial forum . . . The provision makes no mention of any other procedural options, such as the right to representation or the right to call witnesses” or to compel the agency to appear.

The court also noted that the law specifically gives the MSPB authority to review and rule on actions against other federal employees and against SES employees removed for misconduct; by not specifically providing for review in performance-based actions against SES employees Congress showed that it did not intend to provide that right, it said.

The court said it had no authority to expand MSPB’s review powers under the law, and that it has power to review only final judgments from that agency and not “ministerial record-developing.”

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2021 Federal Employees Handbook