MSPB Asserts Jurisdiction in Select EOP Adverse Action Appeals
This case law update was written by Victoria E. Grieshammer, an attorney at the law firm of Shaw Bransford & Roth, where since 2021 she has represented federal officials and employees in all aspects of federal personnel employment law. Ms. Grieshammer also advises federal agencies and employers on employment issues, such as proposed disciplinary actions and other employment-related litigation.
In this case, the Executive Office of the President, (EOP) Office of Administration (OA) argued that the Merit Systems Protection Board (MSPB, Board) lacked jurisdiction to review its disciplinary actions, asserting that it (OA) is not an agency. The Board disagreed. It held that it had jurisdiction over the case because the appellant was an “employee” as defined by 5 U.S.C. Section 7511(a)(1) subjected to an appealable adverse action.
In June 2015, the OA removed appellant from his position based on four charges, and it identified the legal authority for the action as 5 U.S.C. Chapter 75.
The appellant appealed the removal decision. After holding a hearing, the administrative judge mitigated the removal to a 60-day suspension, finding that the OA failed to prove several charges. The OA filed a petition for review as well as a motion to dismiss the appeal for lack of jurisdiction. The OA argued that an employee’s right to appeal an adverse action to the Board only applies when taken by an “agency,” and the OA is not an “agency” as defined by case law and statutory provisions.
In responding to these arguments, the Board started with the statutory language at issue. 5 U.S.C. Section 7513(d) states that “[a]n employee against whom an action is taken under this section is entitled to appeal to the Merit Systems Protection Board.” The Board also pointed to the U.S. Supreme Court Decision in Elgin v. Department of the Treasury, 567 U.S. 1, 8 (2012), which stated that “the [Civil Service Reform Act of 1978] makes [Board] jurisdiction over an appeal dependent only on the nature of the employee and the employment action at issue.”
A removal is an employment action that is indisputably covered by the Board’s chapter 75 jurisdiction, the Board stated. The analysis rested, then, on whether the appellant was an “employee” as governed by Chapter 75. 5 U.S.C. Section 7511(a)(1)(A) defines an employee as “an individual in the competitive service who is not serving a probationary or trial period under an initial appointment or . . . has completed 1 year of current continuous service other than temporary appointment.” Here, the appellant satisfied both definitions of employee: when he was removed, he occupied a position in the competitive service, he was not serving a probationary or trial period, and he had completed at least 1 year of current continuous service. Although some employees are excluded by statute from Board appeal rights based on their positions within certain agencies, such as the FBI, OA employees are not one of the groups excluded.
The Board next addressed one exclusion that potentially applied to the appellant—appointment by the President. 5 U.S.C. Section 7511(b)(3) states an exception to the definition of employee for individuals who are appointed by the president. The OA argued that the appellant fell within the exception because the President is statutorily authorized to “employ” individuals in OA under 3 U.S.C. Section 107(b)(1). The Board rejected this argument for two reasons. First, it highlighted that the statute used the word ‘employ’ rather than ‘appoint,’ which have different legal meanings. It next relied on the legislative history of Section 7511(b), wherein Congress explained that “the key distinction between those to whom appeal rights are extended and those to whom such rights are not extended is the expectation of continuing employment with the Federal Government.” Therefore, while Presidential appointees “explicitly serve at the pleasure of the President or presidential appointee,” the appellant’s employment spanned two presidential administrations from 2002 to 2015. This analysis aligned with the OA’s historical position that its employees have MSPB appeal rights.
In sum, the Board held that the only requirements for Board jurisdiction over an appeal are that the appellant was an employee who was subjected to an appealable adverse action under Chapter 75. Those requirements were met in this case and, therefore, the Board had jurisdiction over the appeal. After determining it had jurisdiction, the Board upheld the administrative judge’s findings and mitigation of the penalty.
For these reasons, the Board denied the agency’s motion to dismiss and petition for review and affirmed the initial decision.
Find the full case here: Moncada v. Executive Office of the President, Office of Administration.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.