The case involved an appeal from a dual status tech, one required to be in the National Guard or Reserves, and that was demoted. Image: Sergii Gnatiuk/Shutterstock.com
By: FEDweek StaffThe MSPB has ruled that a grant of appeal rights to “dual status” technicians enacted in 2016 does not apply to adverse personnel actions occurring before then.
Case No. 2023 MSPB 17 involved an appeal from one of those employees – who must be in the National Guard or Reserves as a condition of their federal employment – who had been demoted in 2014 in his civilian capacity. The MSPB hearing officer rejected the case for lack of jurisdiction by finding that the 2016 change in law did not apply retroactively.
The board agreed, although it reached that conclusion for slightly different reasons. It said the issue was whether in changing the law “Congress clearly intended for the amendments to apply retroactively and, if not, whether they would have a retroactive effect, i.e., whether they would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed,” according to a summary by the MSPB.
It concluded that the law “was silent as to the retroactivity of the amendment and that the amendment’s grant of Board appeal rights would increase the agency’s liability for past conduct. The Board also found no basis for concluding that the amendment clarified existing law,” the summary said.
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