The appeal was brought by an immigration judge fired just weeks before his probationary period was to be completed and he would have gained the additional civil service protections for tenured employees. Image: Chokniti Khongchum/Shutterstock.com
By: FEDweek StaffAn MSPB hearing officer has said the agency lacks the jurisdiction to consider a key legal argument being used in challenges to the mass firings of probationary employees early this year: that the firings were “constructive” RIFs and should be overturned because agencies did not follow RIF policies.
The decision by an MSPB administrative judge appears to be the first in many cases brought both individually and as a group by fired probationers making that same legal argument. The appeal was brought by an immigration judge fired just weeks before his probationary period was to be completed and he would have gained the additional civil service protections for tenured employees.
The firings were stopped at one point by a court order that later was lifted, with the layoffs of most probationers taking effect; some were reinstated by agencies deciding they needed them after all. A surge of appeals was then filed with MSPB asserting that the boilerplate language many agencies used to justify the layoffs on performance grounds was a pretext for conducting what was amounted to a RIF without following requirements such as retention preference for veterans.
The administrative judge said that an agency “may not circumvent RIF regulations in effecting the types of organizational change covered by the regulations. Nor is the label the agency ascribes to its action dispositive.” However, the decision said that for MSPB jurisdiction, a RIF is defined as an “administrative procedure by which agencies eliminate jobs and reassign or separate employees who occupied the abolished positions” not directed at individual employees but against positions.
“Though the record reflects that the agency terminated employees, including the appellant, there is no allegation that it eliminated or redistributed functions or duties previously assigned to IJs. The agency’s termination letter does not refer to a RIF or the RIF regulatory authority,” the decision said.
“Moreover, there is no nonfrivolous allegation that the agency abolished or reclassified the appellant’s position. Indeed, there is no indication that the agency has taken any action towards the appellant’s position or the positions of his colleagues whom the agency similarly terminated,” it said.
It added that while agencies “In contrast to the circumstances here, the cases finding RIF jurisdiction over agency reorganization efforts classified as other than a RIF uniformly involve action towards positions through abolishment or reclassification. The appellant offers no authority for the proposition that an action lacking this fundamental element falls within the Board’s RIF jurisdiction.
Decisions by MSPB hearing officers normally can be appealed to the agency’s governing board. However, that board currently lacks a quorum to hear and decide cases. That leaves employees wishing to continue their challenges with the choice of filing an appeal and waiting until the board regains its quorum—which is uncertain—or allowing the decision to become final and then filing an appeal in federal court.
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