2011 brought benchmarks for MSPB


The Merit Systems Protection Board is a small independent agency that sets rules for the federal workplace through courtlike adjudications of adverse actions. All employees in covered agencies who have completed their probationary or trial period have a right to appeal serious adverse actions such as suspensions of more than 14 days, demotions and removals.

Following is a brief look at the issues and decisions in a few of the thousands of cases MSPB heard last year:

• Whistle-blower protections. At issue in Parikh v. the Veterans Affairs Department, 116 M.S.P.R. 197 (2011), a physician at a VA hospital was terminated for disclosing information relating to patient care to members of the House and Senate Veterans’ Affairs committees, the inspector general and medical professionals outside VA. MSPB found that while the appellant’s disclosures to medical professionals outside VA were prohibited under laws protecting medical privacy and thus were not protected whistle-blower activity, his disclosures to members of Congress and the IG were protected disclosures. In a decision that reinforces protection for whistle-blowers, MSPB ordered reinstatement.

Suitability for employment. Suitability cases are often initiated by the Office of Personnel Management based on certain minimum standards for federal employment. At issue in Aguzie v. OPM, 116 M.S.P.R. 64 (2011), OPM ordered the Commission on Civil Rights to terminate a budget analyst more than two years after his appointment because he had made false statements in his job application. MSPB held that civil servants have the right to a board appeal of adverse actions ordered by OPM and not only of adverse actions taken by their employing agency. This decision strengthened due process rights for employees facing a suitability action.

•  Fairness of penalties. Douglas factors are those considerations reviewed by agencies and MSPB in determining the appropriateness of a penalty. They include such considerations as the seriousness of an offense and whether others also were punished. In a review of cases discussing the Douglas factors, MSPB has continued to emphasize that penalties for similar instances of misconduct must not be disparate, even among different work units and employees holding different types of positions. At issue in Raco v. the Social Security Administration, 117 M.S.P.R. 1 (2011), SSA proposed terminating a claims examiner for mostly short absences of generally less than five minutes. Other employees had experienced similar time discrepancies and were punished with less severe penalties, including a five-day suspension, a revocation of telework privileges and a loss of compensation for 15 minutes of time “stolen.” Since removal was inappropriately severe under the facts presented, MSPB determined that a 14-day suspension was the maximum reasonable penalty and canceled the proposed termination. This decision showed a continuing trend of MSPB to look closely at the fairness of penalties.

The Court of Appeals for the Federal Circuit also issued an interesting security clearance decision in Romero v. the Defense Department, 658 F.3d 1372 (Fed. Cir. 2011). It affirmed an earlier MSPB decision denying employment based on the loss of a security clearance. In Romero, a federal employee who was required to hold a secret clearance, which may be revoked when an em-ployee marries a noncitizen, also incidentally held a largely comparable sensitive compartmented information (SCI) clearance, which effectively must be revoked if an employee marries a noncitizen. When Romero married a Honduran citizen, his SCI clearance was revoked out of concerns over foreign influence, and his secret clearance was subsequently revoked, essentially on the grounds that he had lost his SCI clearance. Romero argued that his secret clearance was not properly revoked, but the Federal Circuit found that the agency could properly rely on a reciprocal revocation under agency rules. This decision reinforces the basic concept that MSPB will not review the fairness of a security clearance decision.


About Author

Debra Roth

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com.

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