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Developments at the MSPB: Refused Reassignment Removal Reversed

Developments at the MSPB: On April 3, 2013, the Merit Systems Protection Board (MSPB) issued a precedential decision which completely rewrites the caselaw for deciding removals based on failure to accept a management directed reassignment. In Miller v. Dept. of the Interior, 2013 MSPB 27, the MSPB reversed the removal of Ms. Miller and reinstated her to duty.

In general, federal personnel law permits agencies to direct the lateral reassignment of employees from one position to another, even outside of their commuting area.  If the employee declines to accept the reassignment, the agency can then remove the employee for failure to accept the management directed reassignment if the agency meets its burden of showing that the removal promotes the efficiency of the federal service.

Ms. Miller had been removed after refusing to accept a reassignment from Sitka, AK to a new position in Anchorage, AK. Ms. Miller had no performance issued in her Sitka post, and the Sitka position was not being abolished; the agency then had to advertise and fill both the Sitka and Anchorage slots after removing Ms. Miller.

In reversing the AJ's decision, the unanimous MSPB used the opportunity to overturn its prior caselaw, as a result simplifying the pleading standards and legal analysis used in cases involving removals for failure to accept a management directed reassignment. While prior caselaw involved a multi-step analysis, the new framework announced by the MSPB in Miller simplifies the analysis to a single-step question: has the agency met its burden of showing that the removal promotes the efficiency of the service.  As Ms. Miller's Sitka position was not abolished, as Ms. Miller had no performance problems in her Sitka position, and as the Agency was not abolishing the Sitka position encumbered by Ms. Miller, the MSPB found that the Agency failed to meet its burden of showing that her removal for refusing this reassignment promoted the efficiency of the service.  The MSPB ordered Ms. Miller retroactively reinstated with back pay and possible attorneys' fees and costs.

Ms. Miller was represented by Passman & Kaplan Founding Principal Edward H. Passman.

If you are a current federal employee who has received a proposed adverse action, and would like to discuss your rights, please contact the law firm of Passman & Kaplan, P.C. to request a consultation.

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