Court Wades into Labyrinth of Federal Employee Appeals

By on February 8, 2007 in Current Events with 0 Comments

An Interior Department employee removed by a reduction in force (RIF) has convinced the federal appeals court that he had the right to appeal the RIF to the Merit Systems Protection Board even though the law authorizing the agency’s alternative personnel system took away this appeal right. (Parrish v. Merit Systems Protection Board and Department of the Interior, C.A.F.C. No. 2006-3054, 2/7/07) Neat trick.

Mr. Parrish was the Dean of Administration at the Southwestern Indian Polytechnic Institute. In 1998 Congress passed a law authorizing personnel demonstration projects for Parrish’s organization. The law set forth certain procedural requirements that had to be met for such projects, including “publish[ing] the plan in the Federal Register.” (Opinion p. 2)

As Dean of Administration Parrish apparently played a substantial role in devising the agency’s new personnel system. The agency drafted a Personnel Manual that included RIF procedures, eliminated RIF appeals to the MSPB, and put in place a negotiated grievance procedure for challenging a RIF. (p. 3)

Once the new personnel system was launched, the Institute ran a RIF, eliminated Parrish’s position, and removed him. Instead of following the new grievance procedure to challenge his removal, Parrish filed an appeal with the MSPB. The agency moved to dismiss it for lack of jurisdiction.

The Board’s Administrative Judge denied the agency’s motion. Finding that the agency failed to publish its new personnel plan in the Federal Register, the AJ ruled that the new plan was “ineffective” and Parrish therefore kept his MSPB appeal rights. The full Board disagreed with the AJ and ruled that it had no jurisdiction over Parrish’s appeal: “…the Act ‘does not provide the Board with authority to enforce the procedural requirements of that statute or to nullify actions taken pursuant to that statutory authority.’” (p. 4)

The court has now weighed in and slapped the MSPB’s hand: “One would expect that…the Board would fully and carefully analyze the agency’s action to ensure that the agency had complied with the requirements Congress had imposed as a condition for limiting the Board’s jurisdiction.” (p. 6)

The court vacated the Board’s decision and ordered the matter remanded to the Board. The court has instructed the MSPB to “first determine whether the Institute’s elimination of Board jurisdiction over its RIF appeals satisfied the statutory requirements…including publication of its plan in the Federal Register…” If the Board finds that the Institute did not comply with the law’s requirements, then it will have to determine whether this failure “vitiated the Institute’s supersession of the Board’s jurisdiction over RIF actions.” (p. 8)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.