Federal Manager's Daily Report

The agency complied with the restoration order but shortly afterward proposed a new removal based on the same specifications as the first. Image: DCStockPhotography/Shutterstock.com

A federal appeals court has upheld the removal of an employee on the same grounds it raised in an earlier removal action that had been found to be improper.

In case No. 21-2098, the Court of Appeals for the Federal Circuit was considering a sequence in which an MSPB hearing officer overturned the first action on grounds that the deciding officer had based the decision in part on factors not included in the notice of proposed removal. The hearing officer then issued an interim relief order to have the employee reinstated. Both parties appealed to the MSPB board but the case was held up because the board was vacant and unable to issue decisions at the time.

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The agency complied with the restoration order but shortly afterward proposed a new removal based on the same specifications as the first, which it then finalized and carried out. That time, a different hearing officer upheld the action, a decision that became final when no appeal to the MSPB was filed; the employee appealed to the Federal Circuit instead.

Before the court, the employee argued that the hearing officer’s relief order in the initial case had to remain in effect so long as an appeal of that order was pending before the MSPB board. However, the court noted that in a prior case, it had found that a relief order did not bar an action on different grounds during that period and extended that precedent to situations where the conduct is the same, but the grounds of the Board’s decisions are different.

The authority to grant interim relief to an employee who wins at the hearing officer stage while an appeal to the MSPB is pending “was designed to preserve the consequence of a favorable decision, not to preserve the employee’s employment rights regardless of the circumstances,” it said.

“The clear purpose of the statute is to prevent the agency from taking action inconsistent with the first decision. That did not occur here. The first removal suffered from a procedural deficiency that was cured in a second removal action. [The] second removal was permissible while the first removal was still pending before the Board because the second removal cured the procedural deficiency of the first removal and did not evade the first decision.”

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2022 Federal Employees Handbook