In denying a hearing on the matter (certiorari), the Supreme Court backed the Federal Circuit in setting limits on the MSPB’s jurisdiction to hear appeals of removals or other actions taken by an Agency when an employee loses the ability to hold a “sensitive” government job. As the author points out, many more Federal employees hold positions with a sensitive rating than do those with security clearances.
Since the Federal Labor Relations Authority was inoperative for all but the last week or two of 2013, the most significant cases for practitioners were decided by the Merit Systems Protection Board and the Federal Courts.
In a January 3, 2014 decision, the Federal Circuit stated: “As explained in this opinion, by adopting two inconsistent interpretations of the same statutory language, the Authority has acted arbitrarily and capriciously”. This deals the FLRA, only back in operation since mid-December, a stinging rebuke on arguably its most extensive political tool, the determination as to what is or isn’t an “appropriate arrangement.”
Federal Agency advocates, attorneys, HR advisors and adverse action decision makers should make a point of reading the MSPB’s new report titled Clean Record Settlement Agreements and the Law. The report identifies the pitfalls involved in making deals with employees in which the Agency agrees to expunge negative information from an employee’s record in return for a resignation.
MSPB announced on 11/8/2013 that it planned to change the way it adjudicates jurisdiction claims by altering its regulations. The Author suggests that anyone involved in appeals before the Board should read this article and respond to the Board’s request for comments by practitioners. As a part of its effort, the Board has prepared a useful chart called Elements/Issues in MSPB Appeals that is worth reading.
On October 16 and 30, the Senate confirmed the nominations of the Director of the Office of Personnel Management and three members of the Federal Labor Relations Authority.
MSPB has published statistics on case handling for the last two years. The numbers for cases before Administrative Judges are remarkably consistent, while full Board cases appear skewed in a different direction. The author suggests advocacy would benefit from some Board studies on the basis for decisions and departure from precedent if indeed such is the case.
The President issued a message welcoming furloughed Federal employees back to work and OPM laid out guidance to employees and Agencies about pay, leave and benefits issues.
The Author points out major mistakes in OPM’s Guidance on Furlough Shutdowns. The Author suggests OPM lacks the career skill base to offer proper information and guidance to Agencies and furloughed workers.
OPM has updated its Furlough Guidance website with new information on furloughs.