United States Merit Systems Protection Board

Last updated
Merit Systems Protection Board
Seal of the United States Merit Systems Protection Board.svg
Agency overview
FormedJanuary 1, 1979 (1979-01-01)
Preceding agency
  • United States Civil Service Commission
Jurisdiction Federal government of the United States
Headquarters Washington, D.C.
Agency executives
Website www.mspb.gov OOjs UI icon edit-ltr-progressive.svg

The Merit Systems Protection Board (MSPB) is an independent quasi-judicial agency established in 1979 to protect federal merit systems against partisan political and other prohibited personnel practices and to ensure adequate protection for federal employees against abuses by agency management. [1]

Contents

When an employee of most Executive Branch agencies is separated from his or her position, or suspended for more than 14 days, the employee can request that an employee of MSPB conduct a hearing into the matter by submitting an appeal, generally within 30 days. [2] In that hearing, the agency will have to prove that the action was warranted and the employee will have the opportunity to present evidence that it was not. A decision of MSPB is binding unless set aside on appeal to federal court. Along with the Office of Personnel Management and the Federal Labor Relations Authority, the MSPB is a successor agency of the United States Civil Service Commission.

The board had gone without a quorum for the entire Trump administration, with the last member retiring at the end of February 2019. [3] [4]

Board quorum resumed on March 4, 2022 upon the swearing in of Raymond Limon and Tristan Leavitt. [5]

Function

Generally, appeals are heard by the United States Court of Appeals for the Federal Circuit. However, appeals involving claims of discrimination are heard in federal district court. [6]

The Board carries out its statutory mission by:

Board members

The Board is composed of three members, nominated by the President of the United States, with the advice and consent of the Senate, for a term of seven years. By statute (5 U.S.C.   § 1201), "not more than 2 […] shall be adherents of the same political party". The chair of the board requires two separate Senate confirmations, one as a member of the board and one as chair. The President can designate a vice chair without Senate confirmation. [7]

NamePartySworn inTerm expires
Cathy Harris
(Chair)		DemocraticJune 1, 2022March 1, 2028
Raymond Limon
(Vice Chair)		DemocraticMarch 4, 2022March 1, 2025
Henry Kerner RepublicanJune 3, 2024March 1, 2030

Significant appeals

The largest settlement since the inception of MSPB in 1979 was for $820,000 in Robert W. Whitmore v. Department of Labor. [8] The Board approved the settlement on June 5, 2013. Whitmore was fired after giving Congressional testimony that the Occupational Safety and Health Administration's workplace injury and illness program was deliberately ineffective. Whitmore had worked for the Bureau of Labor Statistics for 37 years.

The largest settlement before Whitmore was for $755,000 to former Securities and Exchange Commission lawyer Gary J. Aguirre, for his wrongful termination in 2005. [9] The SEC settled Aguirre's claim on June 29, 2009. [9]

In January 2011, the Board ordered the US Park Police to reinstate its former chief, Teresa Chambers, who had been fired in July 2004 for speaking to the Washington Post about the consequences of Park Police staff shortages. The Board also found her entitled to retroactive pay dating back to July 2004 and legal costs. [10]

Merit Principles survey

The Merit Systems Protection Board surveyed federal employees in 1992 and 2010. [11] The response rate was 64 and 58 percent, netting approximately 13,000 and 42,000 responses in the 1992 and 2010 surveys, respectively. One question asked, "During the last 12 months, did you personally observe or obtain direct evidence of one or more illegal or wasteful activities involving your agency?" In 1992, 17.7 percent of respondents answered yes. In 2010, only 11.1 percent of respondents answered yes. [12]

In 1992, 53 percent of respondents who made a disclosure reported that they were identified as the source. In 2010, 43 percent reported that they were identified. [13] In both 1992 and 2010, approximately one-third of the individuals who felt they had been identified as a source of a report of wrongdoing also perceived either threats or acts of reprisal, or both. [14] To qualify for protection under the Whistleblower Protection Act, the individual must be disclosing a violation of a law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety. [12] Only certain official personnel actions are prohibited; other forms of retaliation remain permissible. [13]

Criticism

There are complaints that the MSPB has gone far beyond protecting civil servants from unjustified disciplinary action. Rather, critics allege, the MSPB now makes it nearly impossible to fire poor performers or problematic employees, even when they have committed egregious violations that would result in immediate termination in the private sector. According to the CEO of the Partnership for Public Service, "There is no question that taxpayers are losing hundreds of millions of dollars, in a conservative estimate. They are losing more than that because they are losing the ability to get the very best out of government." [15] [16]

However, statistics gathered by the MSPB state that in 2014, a total of 15,925 appeals were filed with the MSPB. Of those, 5,283 were dismissed, 1,093 were settled, and 9,549 were adjudicated by way of initial decisions made by MSPB administrative judges and administrative law judges. In those initial decisions, the MSPB affirmed the employing agency's decision 9,348 times (nearly 98% of the time), modified the employing agency's decision or mitigated the penalty imposed 21 times, and reversed the employing Agency's decision 169 times. The Presidentially-appointed Board members granted review of 170 initial decisions, remanding the case for further review in 112 cases, reversing the initial decisions of MSPB administrative judges and administrative law judges in 30 cases, affirming the initial decision in 18 cases, and taking another action in 10 cases. [17]

From January 7, 2017 to March 3, 2022, the MSPB lacked a quorum consisting of two members. [18] [19] [20] It is the longest the agency has been without a quorum in its history. [19] Without a quorum, the "Board will be unable to issue decisions that require a majority vote" until more members are appointed by the president. [21] Effectively, this meant that no new substantive decisions are being issued and the backlog of cases awaiting a final disposition is increasing. As of March 2019, the last member's term had expired and the Senate had not acted on President Trump's nominations. With a vacant board, its general counsel becomes the acting executive and administrative officer, and administrative judges still hear cases and issue initial decisions. [22]

On March 4, 2022, President Biden's nominees Vice Chair Raymond Limon and Member Tristan Leavitt were sworn in to the MSPB, leading to the restoration of a quorum. [23]

History

It was established as an independent agency by Reorganization Plan No. 2 of 1978 (43 FR 36037, 92  Stat.   3783), effective January 1, 1979, in accordance with EO 12107 (44 FR 1055), December 28, 1978, and the Civil Service Reform Act of 1978 (92  Stat.   1111), October 13, 1978. [24]

See also

Notes

  1. ↑ Shimabukuro, Jon O.; Staman, Jennifer A. (March 25, 2019). Merit Systems Protection Board (MSPB): A Legal Overview (PDF). Washington, DC: Congressional Research Service. Archived (PDF) from the original on 29 March 2019. Retrieved 29 March 2019.
  2. ↑ Berry, John V. (August 12, 2013), "Completing and Submitting an MSPB Appeal", MSPB Law Blog, archived from the original on 2015-05-18, retrieved 2015-08-02
  3. ↑ Lisa Rein (February 12, 2019). "This grievance board for federal workers has one person left — and he's about to leave". WashingtonPost.com. Archived from the original on February 13, 2019. Retrieved February 14, 2019.
  4. ↑ Rein, Lisa (February 15, 2019). "Federal employees will wait longer for their grievances to be heard". Washington Post . Archived from the original on February 17, 2019. Retrieved February 17, 2019.
  5. ↑ "U.S. Merit Systems Protection Board: Frequently Asked Questions about the Lack of Board Quorum and Lack of Board Members" (PDF).
  6. ↑ 5 U.S.C.   § 7703(b)(2)
  7. ↑ "U.S. Merit Systems Protection Board - Board Members". www.mspb.gov. Retrieved 26 June 2021.
  8. ↑ Davidson, Joe. "Court indicates Labor went after employee for whistleblowing activities". Washington Post (June 12, 2013). Retrieved October 14, 2021
  9. 1 2 Gretchen Morgenson, "SEC Settles With a Former Lawyer" Archived 2018-04-12 at the Wayback Machine The New York Times (June 29, 2010). Retrieved March 1, 2011
  10. ↑ O'Keefe, Ed. "Fired Park Police chief Teresa Chambers ordered reinstated" Archived 2012-10-09 at the Wayback Machine . Washington Post (January 11, 2011). Retrieved March 11, 2011
  11. ↑ Grundmann (2011)
  12. 1 2 Grundmann (2011, p. 18/54)
  13. 1 2 Grundmann (2011, p. 23/54)
  14. ↑ Grundmann (2011, p. 13/54)
  15. ↑ "Red tape keeps some bad gov't workers from being fired". CBS News. 2 March 2015. Archived from the original on 3 March 2015.
  16. ↑ "CBS: Govt Inability to Fire Bad Employees Like EPA's Porn-Watcher Costing Taxpayers Millions" on YouTube
  17. ↑ United States Merit Systems Protection Board Annual Report for FY 2014 Archived 2019-02-18 at the Wayback Machine , May 29, 2015. United States Merit Systems Protection Board.
  18. ↑ "U.S. Merit Systems Protection Board: Board Members". www.mspb.gov. Archived from the original on 2017-06-07. Retrieved 2017-08-06.
  19. 1 2 Ogrysko, N. (2018, Nov 28). A member-less MSPB more likely as Senate committee fails to clear pending nominees Archived 2019-01-21 at the Wayback Machine . Federal News Network. Retrieved Jan 19, 2019.
  20. ↑ [mspb.gov/FAQs_Absence_of_Board_Quorum_March_4_2022.pdf]
  21. ↑ "Frequently Asked Questions about the Lack of Board Quorum". www.mspb.gov. January 25, 2017. Archived from the original on February 11, 2017. Retrieved August 6, 2017.
  22. ↑ Linderman, Juliet (March 1, 2019). "Board that handles federal worker disputes is now vacant". The Washington Post. Associated Press. Archived from the original on March 7, 2019. Retrieved March 6, 2019.
  23. ↑ [mspb.gov/FAQs_Absence_of_Board_Quorum_March_4_2022.pdf]
  24. ↑ "Records of the Merit Systems Protection Board [MSPB]". National Archives. 2016-08-15. Archived from the original on 2017-11-07. Retrieved 2017-11-02.

Related Research Articles

<span class="mw-page-title-main">United States Office of Personnel Management</span> United States federal government agency

The United States Office of Personnel Management (OPM) is an independent agency of the United States government that manages the United States federal civil service. The agency provides federal human resources policy, oversight, and support, and tends to healthcare (FEHB), life insurance (FEGLI), and retirement benefits for federal government employees, retirees, and their dependents.

The excepted service is the part of the United States federal civil service that is not part of either the competitive service or the Senior Executive Service. It allows streamlined hiring processes to be used under certain circumstances.

An administrative law judge (ALJ) in the United States is a judge and trier of fact who both presides over trials and adjudicates claims or disputes involving administrative law. ALJs can administer oaths, take testimony, rule on questions of evidence, and make factual and legal determinations.

<span class="mw-page-title-main">Senior Executive Service (United States)</span> Federal civil service job classification

The Senior Executive Service (SES) is a position classification in the United States federal civil service equivalent to general officer or flag officer rank in the U.S. Armed Forces. It was created in 1979 when the Civil Service Reform Act of 1978 went into effect under President Jimmy Carter.

<span class="mw-page-title-main">United States Office of Special Counsel</span> Investigative and prosecutorial agency

The United States Office of Special Counsel (OSC) is a permanent independent federal investigative and prosecutorial agency whose basic legislative authority comes from four federal statutes: the Civil Service Reform Act, the Whistleblower Protection Act, the Hatch Act, and the Uniformed Services Employment and Reemployment Rights Act (USERRA). OSC's primary mission is the safeguarding of the merit system in federal employment by protecting employees and applicants from prohibited personnel practices (PPPs), especially reprisal for "whistleblowing." The agency also operates a secure channel for federal whistleblower disclosures of violations of law, rule, or regulation; gross mismanagement; gross waste of funds; abuse of authority; and substantial and specific danger to public health and safety. In addition, OSC issues advice on the Hatch Act and enforces its restrictions on partisan political activity by government employees. Finally, OSC protects the civilian employment and reemployment rights of military service members under USERRA. OSC has around 140 staff, and the Special Counsel is an ex officio member of Council of Inspectors General on Integrity and Efficiency (CIGIE), an association of inspectors general charged with the regulation of good governance within the federal government.

<span class="mw-page-title-main">Civil Service Reform Act of 1978</span> United States legislation

The Civil Service Reform Act of 1978, (CSRA), reformed the civil service of the United States federal government, partly in response to the Watergate scandal. The Act abolished the U.S. Civil Service Commission and distributed its functions primarily among three new agencies: the Office of Personnel Management (OPM), the Merit Systems Protection Board (MSPB), and the Federal Labor Relations Authority (FLRA).

The United States federal civil service is the civilian workforce of the United States federal government's departments and agencies. The federal civil service was established in 1871. U.S. state and local government entities often have comparable civil service systems that are modeled on the national system to varying degrees.

<span class="mw-page-title-main">Whistleblower Protection Act</span> US law regarding protection of federal whistleblowers

The Whistleblower Protection Act of 1989, 5 U.S.C. 2302(b)(8)-(9), Pub.L. 101-12 as amended, is a United States federal law that protects federal whistleblowers who work for the government and report the possible existence of an activity constituting a violation of law, rules, or regulations, or mismanagement, gross waste of funds, abuse of authority or a substantial and specific danger to public health and safety. A federal agency violates the Whistleblower Protection Act if agency authorities take retaliatory personnel action against any employee or applicant because of disclosure of information by that employee or applicant.

<span class="mw-page-title-main">Executive Order 13087</span> 1998 United States executive order

Executive Order 13087 was signed by U.S. President Bill Clinton on May 28, 1998, amending Executive Order 11478 to prohibit discrimination based on sexual orientation in the competitive service of the federal civilian workforce. The order also applies to employees of the government of the District of Columbia, and the United States Postal Service. However, it does not apply to positions and agencies in the excepted service, such as the Central Intelligence Agency, National Security Agency, and the Federal Bureau of Investigation.

<span class="mw-page-title-main">Robert MacLean</span> U.S. Federal Air Marshal Service whistleblower

Robert J. MacLean is a former United States Federal Air Marshal and whistleblower.

<span class="mw-page-title-main">Executive Office for Immigration Review</span> Office of the US Department of Justice

The Executive Office for Immigration Review (EOIR) is a sub-agency of the United States Department of Justice whose chief function is to conduct removal proceedings in immigration courts and adjudicate appeals arising from the proceedings. These administrative proceedings determine the removability and admissibility of individuals in the United States. As of January 19, 2023, there were sixty-eight immigration courts and three adjudication centers throughout the United States.

<span class="mw-page-title-main">California State Personnel Board</span>

The California State Personnel Board (SPB), one of California's constitutional offices, is one of the California agencies responsible for administration of the merit-based civil service employment system for California state agencies, the other being the California Department of Human Resources.

Human resource management in public administration concerns human resource management as it applies specifically to the field of public administration. It is considered to be an in-house structure that ensures unbiased treatment, ethical standards, and promotes a value-based system.

<i>Huffman v. Office of Personnel Management</i>

Huffman v. Office of Personnel Management, 263 F.3d 1341 is a decision by the United States Court of Appeals for the Federal Circuit addressing a two decade-old conflict between the United States Congress and the U.S. Court of Appeals for the Federal Circuit over the depth of whistleblower protection available to federal civilian employees covered by the Whistleblower Protection Act of 1989. The discourse revolves around the meaning of the word 'any'.

<span class="mw-page-title-main">Whistleblower protection in the United States</span>

A whistleblower is a person who exposes any kind of information or activity that is deemed illegal, unethical, or not correct within an organization that is either private or public. The Whistleblower Protection Act was made into federal law in the United States in 1989.

Curtis Douglas vs. Veterans Administration (5 Merit Systems Protection Board, 313 was a case decided by the Merit Systems Protection Board which established criteria that supervisors must consider in determining an appropriate penalty to impose for an act of federal employee misconduct.

Elgin v. Department of the Treasury, 567 U.S. 1 (2012), was a United States Supreme Court case where the Court ruled that the Civil Service Reform Act of 1978 (CSRA) gives exclusive jurisdiction for claims under the Act to the U.S. Court of Appeals for the Federal Circuit. Additionally, the Court held that the Act bars federal district courts from ruling on matters related to the act including adverse employment actions of the federal departments, and allows the Merit Systems Protection Board to hear constitutional arguments for wrongful employee severance and adverse employment actions. It was a 6–3 decision, with the majority opinion delivered by Justice Clarence Thomas. The case greatly limited the recourse of federal employees to the courts for adverse employment practices, allowing such recourse only to a few, specific courts as aforementioned.

Kloeckner v. Solis, 568 U.S. 41 (2012), is a decision by the Supreme Court of the United States involving federal employee grievance procedures under the Civil Service Reform Act of 1978. The issue was whether a so-called "mixed case" involving both wrongful termination and discrimination claims should be appealed from the Merit Systems Protection Board to a federal district court or to the United States Court of Appeals for the Federal Circuit.

<span class="mw-page-title-main">All Circuit Review Extension Act</span>

The All Circuit Review Extension Act is an Act that extended for three years the authority for federal employees who appeal a judgment of the Merit Systems Protection Board (MSPB) to file their appeal at any federal court, instead of only the U.S. Court of Appeals. This was a pilot program established in the Whistleblower Protection Enhancement Act of 2012 to last only two years.

Sherry Chen is an American hydrologist who worked in the National Weather Service (NWS) office in Wilmington, Ohio. She was accused of spying and arrested in October 2014. In March 2015, federal prosecutors dropped all charges against her without explanation before the trial began. Even with the case dropped, Chen was fired from her job in March 2016 for many of the same reasons that she was originally prosecuted for. In October 2016, Chen filed a case of wrongful employment termination to the Merit Systems Protection Board (MSPB). In April 2018, MSPB issued a decision stating that Chen was "a victim of gross injustice" and ordered the Department Of Commerce to give her job back with back pay. In June 2018, DOC filed an appeal of the MSPB decision, but this has been delayed. In January 2019, with her case in an indefinite limbo, Chen's legal team filed a civil lawsuit against the U.S. government for the malicious prosecution and false arrest in the United States District Court for the Southern District of Ohio. The case was settled on Nov. 10th, 2022. Ms Chen was awarded $550,000 up front, followed by $1.25 million to be paid out by the US government over the next 10 years.

References

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.