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The MSPB says there is confusion in court decisions as to when it can accept a case in certain types of cases and invites the court to resolve the confusion. A dissenting opinion concludes there is no confusion.

In a recent decision, the MSPB says, in effect, the federal government’s third party appeals agency is confused as a result of conflicting court opinions and asks for help. At least, that is what the majority opinion says.

In a separate opinion, another MSPB Member says there is no confusion and that no further clarification is necessary.

Clearly, this is a case that could potentially require a few teams of lawyers to sort out.

What does a federal agency such as the MSPB do when it does not agree with decisions of reviewing courts? It cannot direct the court to take a case and certainly can’t tell the court how it should handle legal questions. In effect, the Board appears to be urging the employee to appeal this recent decision to the Court of Appeals for the Federal Circuit.

Here’s the situation.

A part-time clerk for the Postal Service was fired by the agency. The employee’s union negotiated a settlement on behalf of the employee. In the settlement, the union agreed that the employee would remain fired but would receive a payment from the agency.

The employee filed an appeal with the Merit Systems Protection Board on the grounds that he did not agree with the settlement and that the agreement was made without his knowledge and consent. The Administrative Judge found that the former Postal worker did not have a basis for an appeal because the settlement was made by his representative and there is a presumption that a settlement such as this one means that the resignation from his federal job was voluntary.

The former Postal employee then filed an appeal with the MSPB. The Board concluded the initial decision was correct and that the employee’s separation from the Postal Service was voluntary.

But the MSPB then reopened the appeal anyway.

The reason it accepted the appeal was confusion over the standard to be used in cases such as this one.

In Cruz v. Department of the Navy, 934 F.2d 1240, 1248 (Fed. Cir. 1991) (en banc), the full court ruled that the Board “never acquire[s] jurisdiction” over a constructive removal appeal unless the appellant proves his resignation or retirement was involuntary.

Apparently the Board is not certain when it has authority to hear a case when an employee alleges that his separation was not voluntary. In this case, the employee’s representative agreed to the separation and the union that made the agreement had authority from the employee to reach such an agreement.

But, if the employee then decides he doesn’t want to leave his job, does he have the basis for an appeal? A case like this can obviously take a lot of time and money if it is necessary to litigate the case after having taken the time and effort to negotiate a settlement. The result of allowing more such appeals is that there are fewer settlements in cases.

The confusion arises, says the Board, because of cases such as Spruill v. Merit Systems Protection Board, 978 F.2d 679, 689 (Fed. Cir. 1992). In that case, the court ruled that the Board should hear a case based on a “well-pleaded complaint.”

The distinction between taking a case when the appellant has formulated a “well-pleaded complaint”  or taking a case when the employee is able to prove that his separation was involuntary would mean the difference in whether some employees have their case heard before the Board even thought the final result may be the same.

But the MSPB cannot direct the court to take a case and, presumably, the court cannot take a case without a party filing an appeal. Basically, the Board is inviting the employee to appeal the case to the Federal Circuit Court of Appeals in hopes of getting a clarification of the issue.

But the case gets even more complex.

Board Member Suzanne Marshall concludes in a separate opinion that there is no reason for clarification by the court because the decision in Cruz was correct and that other court decisions issued since Cruz have followed the same standard. She concludes: “Thus, I do not concur in that part of the Opinion and Order which invites the court to reconsider Cruz in an en banc decision.”

The lawyers should have some fun with this one.

Bartels v. US Postal Service, CH-0752-03-0698-I-1, March 14, 2005.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47