Fedweek

In its first month in operation after being reconstituted, the MSPB board has signaled its priorities by addressing several cases of alleged whistleblower retaliation as well as other disciplinary matters.

The rulings are setting precedent that likely will be used as the basis for tackling other cases involving similar legal issues among the 3,600-case backlog of appeals of hearing officer decisions that had built up during the five years the board was unable to issue decisions because it lacked a quorum. With new legal precedents established, the board will be able to decide those cases more quickly.

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The board is operating with only two of the three seats filled, making the decisions essentially bipartisan; a nomination for the third, a Democrat for the chairmanship, remains pending in the Senate.

Among the early decisions were two involving alleged retaliation against whistleblowers. In one, the board took a narrow reading of what types of activities qualify for those protections as an “exercise of any appeal, complaint, or grievance right” but also that even for reemployed annuitants—who have more limited job rights—an agency must prove that it would have taken the same action regardless of the whistleblowing.

In another, the MSPB found that a DoD employee who had made a protected disclosure regarding the military’s handling of the remains of deceased service members had suffered retaliation when she was not selected for another job she applied for. That was true even though the deciding officials were not directly involved in the disclosures because the disclosures cast the department as a whole in a negative light.

In another early case, the MSPB held that it lacks the authority to adjudicate a removal based on a negative “suitability” determination as a disciplinary action for alleged misconduct even if the appellant is a tenured federal employee. And in another, it upheld a removal by holding that an argument challenging the hearing officer’s right to issue the decision could not be considered because that argument was not first raised at the lower level. The board also has upheld the OSC’s authority to enter into settlement agreements in Hatch Act cases that provide for a penalty of less than firing for a violation.

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2022 Federal Employees Handbook