Developments at the MSPB: On May 11, 2015, the Merit Systems Protection Board (MSPB) issued a new report, What is Due Process in Federal Civil Service Employment? This report appeared to target certain alleged mischaracterizations regarding civil service due process rights of federal employees which, according to recent press accounts, have been driving proposals in Congress to truncate those due process protections.
The report explains the historical evolution of federal civil service law from the time of the Spoils System to the present, showing the basis for the present policy of limiting removals of civil service employees to removals for good cause shown. The report discusses the Constitutional due process protections for federal civil service employees, specifically discussing the Supreme Court’s Loudermill decision and its progeny. The report carefully notes that these protections cannot constitutionally be modified by statute so long as there is a good cause requirement for removal of the affected employees. The report also discussed some of the legal problems caused in creating agency-specific personnel regulations, citing the example of the FAA’s special personnel authorities, and the difficulties caused by the incomplete repeal of that special legal status.
The report concludes with its “Appendix A”, which specifically rebuts certain common inaccurate characterizations appearing in the press regarding federal civil service law, such as “An agency must pay a salary to an employee who has been removed until any appeal has been resolved.” or “The removal of a Senior Executive Service (SES) employee is delayed by the appeals process.”
This report, which the MSPB itself characterizes as having been purposefully written “in plain English,” appears to target not only the current legislative proposals for truncating civil service adverse action appeal rights, but also the recent legislation which set off these proposed amendments. The report follows on the MSPB’s 2014 letter to President Obama regarding Section 707 of Pub.L. 113-146, a 2014 statute which truncated adverse action appeal rights for Senior Executive Service employees at the Department of Veterans Affairs–which was also previously analyzed in this blog. In that letter, the MSPB raised concerns on the legality of Section 707 (specifically citing interference with the MSPB’s ability to review decisions issued by its own administrative judges in Section 707 cases).