MSPB Clarifies Agency Obligations for Fulfilling Interim Relief Orders When An Appellant is Unable to Work
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.
When an employee-appellant is a prevailing party in an MSPB appeal, the agency is required to provide interim relief, including pay and benefits, if it chooses to request a review of the decision. Here, the agency refused to provide pay to an employee because he was unable to work, and the Merit Systems Protection Board held that it violated interim relief requirements.
The appellant, a Social Worker at the Department of Veterans Affairs, was removed from his position based on charges of Conduct Unbecoming and Absence Without Leave (AWOL). He challenged the removal at the MSPB, where he argued, as affirmative defenses, discrimination based on race, age, disability, and gender, and retaliation for protected equal employment opportunity activity.
The administrative judge issued an initial decision which did not sustain the charge of Conduct Unbecoming but did sustain the AWOL charge. The decision also found the affirmative defenses to be unfounded. Finally, the administrative judge mitigated the removal penalty. She determined that, in light of the Douglas factors, the maximum reasonable penalty was a 30-day suspension for the sustained charge of AWOL. The administrative judge thereafter ordered the agency to provide the appellant with interim relief under 5 U.S.C. § 7701(b)(2)(A) if either party filed a petition for review.
The agency did file a petition for review, and the appellant filed a petition for enforcement of the administrative judge’s interim relief order. Before reaching the merits of the agency’s petition for review, the MSPB analyzed the application of the interim relief order according to the statutory and regulatory requirements.
When an appellant is the prevailing party in an initial decision and the administrative judge ordered interim relief, an agency must submit a certification with its petition for review pursuant to both statute (5 U.S.C. § 7701(b)(2)(A)(ii)) and regulation (5 C.F.R. § 1201.116(a)). This certification must state that the agency has either complied with the interim relief order or it has made a determination that the appellant’s return to the workplace would be unduly disruptive. If the agency does not provide this certification or evidence of compliance, the Board may dismiss its petition for review based on 5 C.F.R. § 1201.116(e).
An interim relief order requires an agency to meet two elements. “The first is returning the appellant to the workplace while the petition for review is pending” unless it would be unduly disruptive to the workplace. The second is “providing the appellant with pay and benefits while the petition for review is pending,” even if the appellant is not returned to the workplace.
Here, the agency submitted evidence showing that it had cancelled the appellant's removal and placed him on leave without pay. It argued that the decision not to pay the appellant was appropriate because the appellant was unable to work and could not be returned to the workplace. The Board first noted that “it is undisputed that the agency did not provide the appellant with pay and benefits upon filing the petition for review.” It subsequently reasoned that, although the appellant’s ability to work could affect his entitlement to back pay, it had no impact on the agency’s statutory obligation to provide pay and comply with the interim relief order. The Board explained that “the resumption of pay during the interim relief period is the most fundamental element of interim relief.” Because the agency refused to pay the appellant, the Board found that it failed to satisfy the interim relief order, despite the employee’s inability to work. As a result, the Board dismissed the agency’s petition for review pursuant to 5 C.F.R. § 1201.116(e).
Find the full case here: Johnson v. Department of Veterans Affairs
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