By William Wiley

Beginning in 1979, MSPB issued two types of decisions: precedential and short forms. The short form says nothing other than a Petition for Review challenge to a judge’s decision has no merit, much like the Supreme Court’s say-nothing orders that “deny certiorari.”

A full “Opinion and Order” precedential decision discusses an important civil service principle, and contributes to the development of federal employment law. The Board’s reviewing authority, the US Court of Appeals for the Federal Circuit, is bound to affirm an MSPB Opinion and Order on appeal unless it is:

  • Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
  • Obtained without procedures required by law, rule, or regulation having been followed; or
  • Unsupported by substantial evidence.”

5 USC § 7703(c); see Terban v. Energy, 216 F.3d 1021 (Fed. Cir. 2000)

About five years ago, the then relatively-new leadership at MSPB decided to replace the say-nothing short form dismissal with a new type of decision, a non-precedential order (NP). These new orders were defined by the Board as not contributing significantly to the Board’s case law, 5 CFR 12901.117(c). In other words, they were intended to dismiss the less-important issues while simultaneous giving the reader insight into the members’ rationale for doing so.

When the NP change was announced, this newsletter argued strongly against it for several reasons:

  • Writing substantive NP decisions in the 60% of the appeals that formerly were short-formed would double the workload at MSPB without any commensurate increase in the value of the decision.
    • An increased workload would result in increased delays in issuing decisions thereby denying appellants a prompt resolution of their cases and increasing the government’s back pay liability in appeals in which a removal was set aside.
  • NPs allow the Board to create secret anti-agency case law, case law that cannot be challenged by agencies on appeal. You see, only significant decisions can be appealed by the government to federal court. As NPs, by definition, are not significant, the Board can give direction to its judges relative to the thoughts of the members via an NP, and an agency cannot do anything about it (whereas an appellant can).
    • Yes, the Board says in the introduction to an NP decision that a judge is not required to follow its reasoning. However, if you do not think that judges read these things and apply the rationale to later cases, you do not know how a judge thinks. If you were a Board judge, and an NP decision said the answer is X, would you not go with X the next time you saw that issue, knowing that if you said Y or Z the members will reverse and remand the case to you? Everybody likes to go home on time, even MSPB judges.
  • NPs confuse consumers: the parties, the courts, and us practitioners. We do not know what to do with them and they double the research case load, although we’re not sure they are worthwhile as precedent.

Here’s an example that reinforces our argument that MSPB made a mistake when it decided to begin issuing NPs. On July 14, 2014, the Board issued an NP order in the appeal of a putative whistleblower. The appellant had disclosed his belief that a private sector company had committed tax fraud. The judge had found disclosures related to misdeeds by private entities were, per se, not the sort of disclosure protected by the whistleblower protection laws. Two of the three members agreed, holding that the whistleblower laws protect those who disclose government malfeasance, not private entity malfeasance. Aviles v. Treasury, DA-1221-13-0518-W-1 (2014).

MSPB Vice Chairman Wagner disagreed. She argued in dissent that the then-recent amendments to the Whistleblower Protection Act expanded the protection of whistleblowers beyond those that report government malpractice, but also to those who disclose waste/fraud/abuse by private entities in their normal course of duties.

This issue is HUGE. If Congress indeed intended to expand the definition of whistleblower to cover those who report non-government bad deeds in the normal course of their duties, as argued by Vice Chairman Wagner, the universe of whistleblowers increases by several-fold, as there are hundreds of thousands of government employees who have the opportunity to do this sort of thing as a routine part of their work. One would think that if one of the three Presidential appointees at MSPB believes this is what Congress clearly intended “as a matter of plain logic,” the Board’s decision in this matter would be worthy of a precedential decision.

Well, the members did not think this way. They decided to hide this intra-Board disagreement in an NP, thereby relegating the competing rationales of the dissent and the majority opinion to the never-never land of Board law.

In response to the NP order denying his appeal, appellant Aviles took the Vice Chairman’s arguments in his favor to the United States Court of Appeals for the Fifth Circuit. As it turns out, this NP decision became the very first decision to be appealed directly to the Fifth Circuit as provided for in the alternative forum provisions of the 2012 amendments to the Whistleblower Protection Act. The Fifth Circuit did three interesting things with this “insignificant” Board order:

  1. Held that it would not decide whether it was bound to provide the 5 USC § 7703(c) (Terban) deference to an NP decisions (the court is just as confused as the rest of us).
  2. Concluded that the US Federal Circuit Court of Appeals, the court that has been ruling on appeals of Board decisions involving whistleblowers for 25 years, is using the wrong evidentiary standard when assessing jurisdiction (e.g., that the motion-to-dismiss standard should be applied to these appeals, not the summary judgment standard used by the Federal Circuit).
  3. That the logic of Vice Chairman Wagner, as argued by the appellant, was “at odds with common sense and principles of statutory construction.” Aviles v. MSPB, 779 F.3d 457 (5th 2015)

Vice Chairman’s rationale was clearly wrong in this matter. However, she was indeed one of the three individuals empowered by the President, with confirmation by the Senate, to make these decisions. Her dissenting logic and arguments should not be relegated to the world of non-precedential orders, especially so when the case involves significant matters of Board jurisdiction and Federal Circuit precedent. [email protected]

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