By William Wiley, January 18, 2017

Having worked inside of MSPB for nearly a decade, I know how this stuff works. As a Member’s departure gets closer, tough issues with significant impact that have been hanging around undecided get decided. It’s now or never when an adjudicator is about to turn out the lights, much like happens at the US Supreme Court in early summer as the Court’s term for the year draws to an end.

As you may have read about in other parts of this newsletter, MSPB’s Chairman resigned on January 7, leaving the Board without a quorum and unable to operate until the Senate confirms replacements. That means that if there were any contentious issues that had been sitting around, the members had to get them out before that date, or perhaps lose the opportunity to have their voices heard at all.

With that as background, here are decisions that came out the first week of January that, by my guess, were causing some heartburn within MSPB. A couple reverse major precedence in some aspect of federal employment law. Although their impacts are limited to relatively small groups of cases, the effects are significant in those situations, and undo years of precedence contra:

Firing Long-term Temporary Employees:  For many years, individuals employed in a series of temporary appointments accrued MSPB appeal rights even with a few days’ break in service between appointments. That theory was known as a “Continuous Employment Contract.” See Roden v. TVA, 25 MSPR 363 (1984). Well, that’s no longer the rule. From now on, to be entitled to appeal a removal from a temporary appointment, the employee must have more than a year of continuous uninterrupted employment. Winn v. USPS, 2017 MSPB 1.

Settlement Enforcement:  For many years, MSPB would enforce settlement agreements only in cases in which it found that it had jurisdiction over the underlying action on appeal. That principle has now been reversed. The Board will enforce settlement agreements entered into even if it has not established that it has jurisdiction over the underlying matter. Delorme v. DoI, 2017 MSPB 2.

Appellant’s Right to a Hearing:  The Federal Circuit has long held that an appellant is entitled to a hearing, and that the Board may not issue a summary judgment decision without a hearing, even if there are no material issues of fact in dispute. Crispin v. Commerce, 732 F.2d 919 (Fed. Cir. 1984). While the Board’s precedent in this area has not always been consistent or clear, the clarified rule now is that an appellant is not entitled to a hearing when his discrimination claims are deficient as a matter of law. Sabio v. DVA, 2017 MSPB 4.

Sometimes it takes a while for things to happen. I remember a country and western song from my college days that said something like, “All the girls get prettier as closing-time comes around.” Well, the first week of this month was closing-time at the Board. Pretty or not, these are three important decisions that every practitioner needs to know. [email protected]

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