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Developments at the MSPB: Final Rule on DVA SES Adverse Actions

Developments at the MSPB:  On October 22, 2014, the Merit Systems Protection Board (MSPB) issued a Final Rule implementing procedures for handling adverse actions against Senior Executive Service (SES) employees at the Department of Veterans Affairs (DVA) (79 Fed.Reg. 63,031-63,032).  The Final Rule finalized the August 19, 2014, Interim Final Rule (79 Fed.Reg. 48,941-48, 946, as corrected 79 Fed.Reg. 49,423); this Interim Final Rule was previously analyzed in this blog.  The MSPB rushed 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 also previously analyzed in this blog.

The MSPB declined to change the procedures outlined in its Interim Final Rule, even after reviewing the comments received from the three commenters (the National Employment Lawyer Association (NELA), Passman & Kaplan, P.C. and American Civil Liberties Union (ACLU) of the Nation's Capital).  The MSPB took no position on the effect of Section 707 on EEO statutes, whistleblower protections, and protections for veterans under USERRA, and on whether Section 707 affected the Office of Special Counsel (OSC)'s ability to prosecute Prohibited Personnel Practices (PPP), leaving those issues to "initially be addressed through the normal litigation process." Although requested by the commenters, the MSPB also did not expand discovery in Section 707 proceedings. 

Finally, the MSPB acknowledged that its Section 707 rules made it harder for an appellant to overturn covered adverse actions, since its procedural rules impose a rebuttal presumption in favor of DVA's penalty determination. In normal MSPB appeals from disciplinary adverse actions, the agency has the burden of proof of demonstrating the reasonableness of its penalty with no starting presumption in its favor.  The MSPB claimed that the text of Section 707 required such a presumption, an interpretation disputed by some of the commenters.

The MSPB hinted that this rulemaking may not be its final word on the Section 707 procedures, noting that "As of the date of submission of this final rule for publication in the Federal Register, no appeals have been filed with the Board under [Section 707]. The Board may reexamine part 1210 procedures in light of actual experience and will, if necessary, seek additional comment on its procedures and/or propose amendments to part 1210."  Given that Section 707 strips the MSPB of appellate authority to review its administrative judges' decisions in DVA SES adverse actions under the statute, such future rulemaking may be anticipated as the only means left for the MSPB to direct its administrative judges in 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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