MSPB To Be Out Of Business For Awhile

Farewell to Chair Susan Grundmann

Chairman Susan Grundmann announced this week that she departs the Board on January 7. We wish her well and recognize her contributions during her Board service, most particularly, in conjunction with the efforts of prior Board Vice Chair Anne Wagner, abolished the much-disfavored short form summary decisions, instituting a policy that requires every PFR to be closed out with a decision providing written analysis of the points raised on review-through either a precedential decision or a nonprecedential final order. As the Board's Chief Executive Officer, Ms. Grundmann managed Board operations through some difficult times, including the massive number of furlough appeals, which necessarily delayed processing of the ordinary influx of cases at the regional and central Board offices. Somehow the Board survived a massive IT failure that resulted from a server transition gone awry. And there was some discord to be addressed as a result of an internal Board personnel case that evolved into extensive whistleblower litigation. Our understanding, not yet official confirmed, is that Ms. Grundmann will succeed former Board Member Barbara Sapin, who just retired, as the Executive Director of the Office of Compliance, an organization that investigates or adjudicates personnel, labor relations, EEO, and related cases for tens of thousands of employees of the legislative branch. We are sorry to see the departure of Ms. Grundmann-only in part because it leaves the Board without a quorum by which to decide cases at the Headquarters level (PFRs, interlocutory appeals). Mark Robbins will continue to serve and run the administrative operations of the Board, but other than to issue stays at the request of the Office of Special Counsel, he cannot decide cases by himself. He will have to await an appointment or two from the incoming administration.

Goodbye to Settlements Rendered Unenforceable Because of Jurisdictional Issues

It was with considerable relief to practitioners that in January of 2017, the Board's decision in Delorrme v. Dept. of Interior, ___MSPR___, 2017 MSPB 2 (2017), announced that if the parties settle a case and agree that their settlement will be placed into the record for enforcement by the Board, the settlement can be enforced without a preliminary determination that the appeal was within the Board's jurisdiction-a problem that predated Delorme in case of constructive adverse actions and Individual Right of Action (whistleblower reprisal) appeals. Gone is the necessity for creative approaches, such as conditional jurisdictional factual stipulations placed into settlements. The outer limits of Delorme will doubtless be tested. If you appeal a case involving relocation of a telephone, can you settle the case and have the settlement enforced? Hmmm....good question. We shall see. Read all about it: mspb.gov/mspbsearch/viewdocs.aspx?docnumber=1369887

But What About Those Clean Paper Settlements?

Lots of cases get settled through "clean paper." And those settlements have been justifiably publicly criticized by one or more judges of the Federal Circuit, and privately criticized by at least one author of a book about the MSPB, because they create a fiction, e.g., the notion that a person separated from a job without fault when, perhaps unknown to the appellant, many employment applications and all security clearance applications require the individual to disclose the reason for a separation as being a settlement agreement that will then likely be requested by a background investigator and that will reawaken the past that the settlement agreement supposedly put to rest. So, why this comment? Take a look at the following portion of the National Defense Authorization Act for Fiscal Year 2017, enacted in December 2016:

"§ 3322. Voluntary separation before resolution of personnel investigation

"(a) With respect to any employee occupying a position in the competitive service or the excepted service who is the subject of a personnel investigation and resigns from Government employment prior to the resolution of such investigation, the head of the agency from which such employee so resigns shall, if an adverse finding was made with respect to such employee pursuant to such investigation, make a permanent notation in the employee's official personnel record file. The head shall make such notation not later than 40 days after the date of the resolution of such investigation.

"(b) Prior to making a permanent notation in an employee's official personnel record file under subsection (a), the head of the agency shall-

"(1) notify the employee in writing within 5 days of the resolution of the investigation and provide such employee a copy of the adverse finding and any supporting documentation;

"(2) provide the employee with a reasonable time, but not less than 30 days, to respond in writing and to furnish affidavits and other documentary evidence to show why the adverse finding was unfounded (a summary of which shall be included in any notation made to the employee's personnel file under subsection (d)); and

"(3) provide a written decision and the specific reasons therefore to the employee at the earliest practicable date.

"(c) An employee is entitled to appeal the decision of the head of the agency to make a permanent notation under subsection (a) to the Merit Systems Protection Board under section 7701.

"(d)(1) If an employee files an appeal with the Merit Systems Protection Board pursuant to subsection (c), the agency head shall make a notation in the employee's official personnel record file indicating that an appeal disputing the notation is pending not later than 2 weeks after the date on which such appeal was filed.

"(2) If the head of the agency is the prevailing party on appeal, not later than 2 weeks after the date that the Board issues the appeal decision, the head of the agency shall remove the notation made under paragraph (1) from the employee's official personnel record file.

"(3) If the employee is the prevailing party on appeal, not later than 2 weeks after the date that the Board issues the appeal decision, the head of the agency shall remove the notation made under paragraph (1) and the notation of an adverse finding made under subsection (a) from the employee's official personnel record file.

"(e) In this section, the term 'personnel investigation' includes-

"(1) an investigation by an Inspector General; and

"(2) an adverse personnel action as a result of performance, misconduct, or for such cause as will promote the efficiency of the service under chapter 43 or chapter 75.".

(b) APPLICATION.-The amendment made by subsection (a) shall apply to any employee described in section 3322 of title 5, United States Code, (as added by such subsection) who leaves the service after the date of enactment of this Act.

So, the number of MSPB practitioners can now increase beyond those now proclaiming expertise on the Internet with the advent of, yes, an "MSPB notational appeal."