MSPB Disagrees with Agency Decision, Changes Case Law in Response

In a reversal of 30 years of precedent and, arguably the view of the Federal Circuit Court of Appeals, the MSPB has changed its case law on an Agency’s obligations in removing employees when the employee refuses a directed reassignment. The author points out that this Board appears on a mission to limit agency discretion despite history and precedent.

Reversing 30 years of precedent and, arguably, the view of the Federal Circuit Court of Appeals, the MSPB has changed its case law on an Agency’s obligations in removing employees when the employee refuses a directed reassignment.  The case Miller v. DOI (entire case is at the end of this article) involved a National Park Superintendent in Sitka, Alaska that the Agency wanted to assign to Anchorage.

To quote from the decision about the Agency’s prior obligation :

“Under the old framework, when an adverse action under 5 U.S.C. chapter 75 was premised on an employee’s refusal to accept a directed assignment, the agency was obligated to prove by preponderant evidence that the removal would promote the efficiency of the service. Ketterer, 2 M.S.P.R. at 298; see 5 U.S.C. §§ 7511, 7512, 7513(a). This necessarily included a demonstration that the agency’s decision was a bona fide determination based on legitimate management considerations in the interests of the service. Ketterer, 2 M.S.P.R. at 298. Together with evidence that the employee had adequate notice of the decision to transfer and that she refused to accept the reassignment, this ordinarily would have been sufficient to establish a prima facie case.”

Once the Agency established the above, Board goes on:

“If the appellant could show that the reassignment had no solid or substantial basis in personnel practice or principle, the Board may have then concluded that the reassignment was not a valid exercise of managerial discretion, but was instead either an improper effort to pressure the appellant to resign or was at least an arbitrary and capricious action. Id. If the appellant successfully rebutted the agency’s prima facie case, the third step would have been for the agency to come forward with further evidence relating the reassignment to the efficiency of the service. Ketterer, 2 M.S.P.R. at 300; see also Frey v. Department of Labor, 359 F.3d 1355, 1360 (Fed. Cir. 2004) (endorsing the Board’s framework and adopting it as the law of the circuit).”

The last line is interesting in that all of the Board’s cases, presumably this one as well, are covered by the law of that court at least if appealed.  More on this later.

Under the new scheme proposed by the Board (ain’t been to court yet), there is only one consideration, i.e., was the action taken to promote the efficiency of the service.  The decision goes on at length about how three steps are unnecessary as the Board, apparently in its view could always determine to reverse or sustain based on the “efficiency of the service standard” anyway.  Really?  Then a poor, old, ignorant non-attorney such as me might ask, why did all the prior Boards and Federal Circuit Judges recognize the old standard?  Did these folks get up one recent morning, smack themselves in the forehead and say, “I couldda done it in one step.”

Susan Smith, FedSmith’s esteemed writer on matters legal wrote about this exact issue in a 2008 article.

“As we noted above, however, the agency’s right to transfer employees is a function of agency authority pursuant to regulations promulgated by the Office of Personnel Management; the agency does not obtain its right to transfer from a particular employee’s consent, nor is it denied the right to transfer a particular employee because that employee has not previously given such consent or been specifically notified of the possibility of a transfer at some time in the future.”

So What’s Going On Here?

There are a couple of possibilities about the real story of the Board’s departure from precedent and they could even be related to one another.

First, it’s a crummy case if the Board’s cited facts are accurate.  According to the Board, at least, the Agency wanted to move the Park Superintendent to a job she didn’t want hundreds of miles away.  The Board says she was a good employee and that moving her didn’t promote the efficiency of the service.  Even if all of that is true, what it appears to come down to is that the members of the Board wouldn’t have made the same decision.  Not that the move was unnecessary, not that a manager with authority didn’t consider his/her options in making the call, merely the Board members disagreed./  The prior standard had really come down to whether the Agency acted in an arbitrary and capricious manner.  This Board, in apparent disagreement with the Court, has opened the door to arrogating the question of the authority of the Agency to reassign to itself.  Slippery slope there.

Second, this Board doesn’t much like Agency discretion.  In a prior FedSmith article, we pointed out the Board’s failed attempt to undercut Agency decision making in security clearance determinations.  In that case, the Federal Circuit slammed the Board, in essence asking the members whether they had read the controlling Supreme Court Decision, also 30 some years in the past.

This Board appears to have taken to heart the idea that every removal in the Federal service is a “Federal Case” and should go to the Supreme Court.   I suggest it reexamine its apparent predetermination that every Agency action is a merit system violation.  Most are just judgment calls.  What the Board should fear is making managers so gun shy that they don’t act at all. Many of my colleagues believe we’re there already.

Perhaps the Board should take Donald Trump to heart when he said: “I could never have imagined that firing 67 people on national television would actually make me more popular, especially with the younger generation.

Any opinion expressed above is solely my responsibility.

Miller v DOI

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.