MSPB Wants Big Changes: Agencies and Agency Representatives Beware!

By on May 30, 2012 in News

Many are criticizing the Merit Systems Protection Board (the Board), formerly a well respected neutral body, of tilting dramatically toward policies, procedures and now rules that benefit appellants or appellant counsel.  The Board has been setting up a proposed rulemaking for June 1, 2012 as reflected in an announcement.  On that page is a link to the proposed regulations.

So what’s the big deal?  The big deal is that the proposed regulations appear to give MSPB much more power to change its regulations and appear to benefit appellant counsel or appellants substantially.  The Board is claiming that these new regulations follow an Executive Order addressing the creation of new regulations.  Let’s look at some of what the Board is proposing:

Making Regulatory Change Easier and Quieter

The proposed rules states that: “Any interested person may petition the MSPB for the issuance, amendment, or repeal of a rule.”

No sweat so far but then adds: “No public procedures will be held directly on the petition before its disposition.  If the MSPB finds that the petition contains adequate justification, a rulemaking proceeding will be initiated or a final rule will be issued as appropriate. “

Now I’m not a lawyer but doesn’t this say the Board can change any of its rules based on the request of anybody without getting comments from anybody?  In the reasons column, it says this is driven by the executive order and mentions that it got such a request already from AFGE Local 1923 (That’s the union that reps the Social Security Administration) but nowhere on the website is there any other mention of this request.

Making Agency Notice Burden Greater

The proposed rule adds the following to what the Agency must provide the appellant:

“(4) The effect of any election under 5 U.S.C. 7121(g), including the effect that seeking corrective action under subchapters II and II of 5 U.S.C. chapter 12 will have on the employee’s appeal rights before the Board.”

5 U.S.C. 7121(g) talks about the election of remedies in the grievance procedure if prohibited personnel practices are alleged.   Subchapters II and III deal with Special Counsel and Individual Rights of Action in reprisal for whistle blowing.  Seems to me that the Board is creating an additional opportunity for “harmful error” if the Agency gets this complex and somewhat speculative notice requirement wrong.

Making Appellant and Appellant and Employee Advocate Burden Lighter

The current reg says the employee must produce: “The notice of the decision to take the action being appealed, along with any relevant documents;”

The proposed reg replaces that with:

“Where applicable, a copy of the decision or notice of the action being appealed.  No other attachments should be included with the appeal, as the agency will be submitting the documents required by § 1201.25 of this part, and there will be several opportunities to submit evidence and argument after the appeal is filed.”

Sounds like it lowered the burden to me.

Creating a Virtually Impossible Witness Production Burden on the Agency

The current reg says:

“Every Federal agency or corporation must make its employees or personnel available to furnish sworn statements or to appear as witnesses at the hearing when ordered by the judge to do so.  When providing those statements or appearing at the hearing, Federal employee witnesses will be in official duty status (i.e., entitled to pay and benefits including travel and per diem, where appropriate).”

The proposed reg says:

“Every Federal agency  or corporation, including nonparties, must make its employees or personnel available to furnish sworn statements or to appear as witnesses at the hearing when ordered by the judge to do so.  The responding agency shall arrange for the presence of approved Federal employee witnesses to include those who are employed by other Federal agencies or corporations.  When providing those statements or appearing at the hearing, Federal employee witnesses will be in official duty status ( i.e., entitled to pay and benefits including travel and per diem, where appropriate).” (My emphasis)

I thought the Board was full of lawyers and so maybe this is just a practical joke to stir up the lawyerin’ community, right? Appears not!  So an appellant wants one or more witnesses from one or more Agencies other than the one whose action he or she is appealing.  The Agency fails to produce them and apparently bears a burden to show cause why it couldn’t.  The Board levies sanctions.  What makes MSPB think that one Agency would pay for and lose the services of an employee out of what, mere courtesy to another.  So what if the second party employee doesn’t want to show up?  I can think of any number of scenarios in which this rule places an Agency action in jeopardy over which it has absolutely no control.  I’m disappointed in the Board for even letting this make it to a draft.  What is going on these days on M Street or maybe a better question, what’s in the water up there?

Spending Agency Money in Big Amounts to Save its Own

In justifying new rules on hearing locations, the Board says:

“The current extensive list of fixed hearing sites causes administrative inefficiencies and can have adverse budgetary considerations for the MSPB, as the cost of airfares are renegotiated by GSA each fiscal year, and cost of court reporters varies considerably from one city to the next.  For example, the Government fare for a flight from Atlanta to Pensacola, Fla. is presently less than $200, while the fare to Mobile, Al., less than 60 miles from Pensacola, is over $1,000.  Having the flexibility to change approved hearing sites from year to year by changing information on the Board’s public website”

So to save the Board $800.00, the Agency would have to ship its advocates and any witnesses to Mobile.  Let’s assume by the Board’s reckoning that’s 60 miles.  Multiply that by 2 (round trip) times $.555 per mile or $66.60 for anyone who drives plus perhaps a night at the government rate in Mobile $94.00 at the Holiday Inn downtown, plus $51 for meals.  That’s $211.60 per person.  Let’s assume the Agency has five people to send and the employee wants 5 employee witnesses and the hearing lasts two days.  That’s $4232.00 (Appellant reps – quibble at will) of Agency money to save the Board $800.00.  Didn’t GSA get in tons of trouble for throwing away money on unnecessary travel.  Wake up MSPB, you’re in the same government as the Agencies.

Other Stuff

There’s a lot more in these proposed regulations in discovery and pleadings that someone smarter than me should take a good look at.  You’ll also like the idea that the lawyers representing appellants are considered stakeholders of equal status to Agencies in the Board’s considerations.

In the past, as any reader will attest, I have shown great respect for the Board as it was clearly well deserved.  As a recent Medal of Freedom recipient once sang, “The times, they are a’changin”.

Any opinion you derive from the above represents my views and should not be construed as the responsibility of anyone but me.

© 2016 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.

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About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.

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  1. LA says:

    The term is “Pro Se,” meaning “for himself.”  Although I agree that appellants and complainants don’t understand the jargon or know how to question a witness, I believe that attorneys or other trained representatives are necessary to keep the pre-hearing conferences and hearings focused on what the law requires.  Appellants and complainants tend to focus more on the emotional aspects — their feelings are hurt, they feel insulted, they feel unappreciated, etc.  We can all understand their feelings, but Title VII, ADEA, ADAAA, EPA, and civil service protections are legal protections — they are created by laws passed by Congress — statutory law.  The laws are interpreted by agencies, which write the regulations — regulatory law.  And the EEOC, MSPB, and courts interpret those statutes and regulations — case law.  Statutes, regualtions, and case law set forth what a person has to show in order to maintain an action.  To show discrimination, a complainant has to show that he is a member of a protected class and that he was treated differently because of his class membership.  It doesn’t matter that he felt insulted or that his feelings were hurt.  Attorneys and trained representatives keep the inquiry focused on what the law requires.  I’ve seen many complaints and appeals, and the majority of complainants and appellants simply have no case according to the law, and that’s why agencies win so much. 

  2. Girl Geek says:

    While they are at it they need to rewrite their documentation as it doesn’t appear to be easy to read or understand. Plain English!

  3. Ruffnreadyguy says:

    Actually, the new requirement that non-party agencies produce their employees will probably work to the advantage of agencies.  A number of years ago, I had an MSPB case that involved technical HR issues relating to an employee’s appointment.  The case went to the Board, and was remanded by the Federal Circuit.  While the case was pending, the HR Specialist that I was working with (who was also my key witness) transferred to another agency.  That agency was willing to allow her continued participation, but if they hadn’t the case would have been sunk.  So I think that provision in the new rules isn’t so bad.

  4. Joemoran says:

    I think I’m missing something with teh travel part of this article.  I’ll accept that it would cost the government $4232 to move all 10 people from Pensacola to Mobile.  That isn’t to save $800.  That is to save $800 per person, which assuming they all come from Atlanta would be $8000.  That would be a total savings of $3768.

    • Author says:

      The point apparently lost was that the Board’s $800 saving cost the Agency $4232.  Got it?

  5. CancerFromIRS says:

    They need to get rid of MSPB – when they use fraud to induce unfair settlements – it’s time to get rid of MSPB.  It only causes more harm to the victim.  At IRS, 1/3 to 1/2 of probationary employees are terminated under certain managers – for no reason at all except to hire the hiring manager’s daughter, territory manager’s brother in law, etc… CPA/MBA’s are being replaced by unqualified library workers (hiring manager’s daughter).  They put career tenured 18 1/2 year employees on fraudulent 2nd probations at IRS in order to deny all due process rights, and MSPB upholds this fraud, denying them their grievance and their due process rights.  They are a disgrace and a total waste of taxpayer money, and victims are suffering tremendously from their failure to do the minimum and enforce due process.

  6. Rwyerosk says:

    How is the MSPB going to overcome it’s failure to protect the government emloyee?. It’s track record for years has been 98% against the Federal Employee and a dead end for justice?!

  7. Guest says:

    The regs have to be published in the Federal Register for comment.  So start writing. 

  8. LAB says:

    I’m interested in the part about there being “several opportunities to submit evidence and argument after the appeal is filed.”  How are they going to fit “several opportunities” into the 120 days required to decide the case?  As to the Agency having to pay to transport all Federal employees — we have to do that now.  And, in our area, MSPB AJs always hear the cases via teleconference.  We have all the local witnesses come to our teleconference site.  If someone is somewhere else, we arrange for them to go to the teleconference-capable Agency office closest to them.  And vickiharris04 — this is the MSPB, not the EEOC.  The EEOC AJs in our area normally go to the Agency’s location.

  9. Personnel atty says:

     Since most agencies prevail because as one AJ said at a training I attended, they do not propose removal until the situation is egregious, the Board needs to overcome the perception that they are pro-Agency.  Thus they try to make it harder to go through the process and AJs try to force settlement by telling both sides they’ll lose (who can blame them–they don’t want this Board reviewing their decisions.)  MSPB has an opportunity now because skilled agency reps are at an all-time low, most ER specialists with experience have retired and the new model is “generalists” and judging by a recent Wiley training I attended, many HR folks from other fields are reassigned to ER/LR and the attorneys are new and inexperienced, especially in large agencies like DHS which seems to have a revolving door. But also politics has entered the picture instead of law, and judging by the numerous mistakes of law in current Board decisions (guess they brought over some union attorneys as their counsel), once this Board is gone these decisions will all be overturned or ignored. Just like EEOC decisions, we can now pick and choose between board decisions with different outcomes for the same facts. See: comparators.

    • sandiegoret says:

      OK, I could have written this too.  My experience is with a different agency but the exact same situation has occurred as described by Personnel atty.  I agree with the AJ who said that agencies do not take action to remove employees until the situation is egregious.  Federal agencies simply do not take on the procedural burden required to remove an employee unless that employee is really a burden on the mission of the agency.  That’s the problem and it’s how the unions can lie with statistics.  The Board affirms most agency removals.  This does not prove that the Board is biased, however, because there is another reason for the correlation–the appellants who make it to the Board really deserved firing.

      The real problem is that politicians play, well, politics with the Board.  Republicans tend to ignore real problems that could be fixed–like some of the procedural burdens with Chapter 43 cases–and just appoint “fire them all” members.  Then the Democrats get in power and ignore any sensible issues and just hire “why can’t we all be friends” members who don’t think any federal employee should be fired.  Like the author of this article, I have been a strong supporter of the Board as one of the best and most fair federal agencies–specially in adjudicating appeals but this present Board is disrupting the natural harmony of the appeals process.

      Hopefully this too shall pass.  

      • pepsi says:

         You mean like this situation…

        http://www.mspb.gov/netsearch/…  

        The reality is Agencies don’t have prove their case. All they have to is make sure the procedure is correct. A good example is adding “conditions of employment” that has nothing to with the job.  Check out Conyers and Northover at the MSPB site.

    • Vicarz says:

      I vouch for this as another personnel atty. The reason “we” win so much is only the perfect cases are advanced. In a perfect world, while there would be protections for employees, you wouldn’t need me at my salary (even the government version of legal pay, though low, is higher than an HR specialist) to defend against simple personnel actions. 

      • Joe somebody says:

        The only reason you “win so much” as you put it is because most of the employees who file do so as “Per Se”.  Many of them cannot afford proper representation.  They then get into MSPB and EEOC and realize they do not even speak the language that is spoken in these forums.  Let alone have the ability to cross exam a witness, if they can even get a witness on their  behalf, due to the retaliatory nature of a lot of these agencies.  You really want to make the bar even, have the managers represent themselves in EEOC or MSPB.

  10. vickiharris04 says:

    To avoid an EEO judge flying to the installation where ALL witnesses and reps on both sides were….everyone had to trek to Louisville KY to have a hearing….Seriously????  talk about a waste of government funds….and don’t even get me started on the complaints process itself and what a waste of taxpayer dollars that whole thing is.

  11. lazycs says:

    MSPB is now being run by union thugs and they will make new laws even though they are unelected. The good news when Mitt is elected they are HISTORY

  12. Personnel Guy says:

    It seems to me that we’re past due on having Congressional hearings on what this Board has been up to.

  13. Msgrowan says:

    I presume that the Administrative Procedures Act (5 USC §551 et seq.) remains in effect.  No executive order, let alone individual agency determination, can supersede the Act’s legal requirements for agencies to publicize regulatory changes and solicit comments upon the same prior to putting them into effect, unless an urgent  case can be made for issuing interim regulations to be effective immdiately while comments are being solicited and considered prior to the issuance of final regulations.  Possibly the Board – and just as possibly the White House – may need to be made (re)aware of this long-standing requirement, as they appear to have forgotten its existence.

    • lazycs says:

      As far as the Messiah is concerned federal laws don’t apply to his administration

  14. Me says:

    Accelerating its own obsolescence.

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