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Developments at the MSPB: DVA SES Adverse Action Interim Final Rule

Developments at the MSPB:  On August 19, 2014, the Merit Systems Protection Board (MSPB) issued an Interim Final Rule implementing procedures for handling adverse actions against Senior Executive Service (SES) employees at the Department of Veterans Affairs (79 Fed.Reg. 48,941-48, 946, as corrected 79 Fed.Reg. 49,423).  The MSPB had to rush to draft these regulations in order to meet a 14-day deadline specified in Section 707 of Pub.L. 113-146--the statute creating this new adverse action procedure--which was previously analyzed in this blog.   As an interim final rule, the regulations came into immediate effect, but the MSPB will be accepting comments on the regulations through September 18, 2014.

The hearing procedure described in the Interim Final Rule does not eliminate any of the elements of the MSPB hearing process outright, but does implement them on a lightning-fast schedule and in a limited form.  Resurrecting a procedure eliminated by the MSPB in 2012, the rules require initial disclosures of documents and witnesses.  The parties must serve discovery requests before the initial scheduling conference (within a week of filing the appeal); discovery responses are due in 3 days (instead of the usual 20 days) and motions to compel discovery as little as 2 days later (instead of the usual 10).   Written discovery limits interrogatories to 10 (as opposed to the usual 25), and no depositions are permitted; all written discovery must be in one set of requests.  The hearing itself is limited to a single day, to occur within 18 days of the appeal filing to ensure that the administrative judge issues a merits decision within 21 days in order to beat Section 707's deadline for upholding the agency removal decision by default. 

The MSPB took the opportunity in the Interim Final Rule to restate its concerns about the possible unconstitutionality of Section 707.  Mirroring criticisms it raised with the White House, the MSPB questioned the constitutionality of making administrative judges' decisions in DVA SES cases under Section 707 final--and unreviewable either by the Board itself, thus limiting the Board's ability to supervise the work of its own administrative judges.  To limit the negative effects of Section 707 decisions on normal MSPB adverse action appeals, the Interim Final Rule makes all administrative judge decisions under Section 707 are nonprecedential, and prohibits any citation to Section 707 cases as precedent in non-Section 707 cases.

If you are a federal employee subject to a possible adverse action, and wish to discuss your rights, consider contacting Passman & Kaplan to request an initial consultation.

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