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Home
	   Studies
		   	 Adverse Actions: A Primer in Pieces
      Second-Hand News Can be Misleading
      The Adverse Action Process - A Flowchart
      Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences
      Different Types of Adverse Actions Use Different Rules
      Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply
      Decision-Maker Must Listen and Have Power to Decide
      Connecting the Job and the Offense ("Nexus")
      Labels are Not Required, but if Used They Must be Proven
      Determining the Penalty
      How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty
      Avoid Facilitating Prohibited Personnel Practices (PPPs)
      Agency Officials' Substantive and Procedural Errors and How to Fix Them
      Identifying Probationers and Their Rights
      The Limited Powers of the U.S. Merit Systems Protection Board
      Why Federal Employees Have the Right to a Hearing
      How a Hearing is Conducted
      Implementing or Challenging Initial Decisions
      Additional Resources
  Search and Site Index *The Limited Powers of the U.S. Merit Systems Protection  Board*

    MSPB “is a creature of limited authority,  enjoying and exercising only the powers vested in it by Congress.”1  Congress has chosen to authorize two courts  in particular to review MSPB’s actions to ensure MSPB acts within its  limitations.  These are:  (1) The U.S. Court of Appeals for the  Federal Circuit (“Federal Circuit”); and (2) The U.S. Supreme Court when  reviewing decisions reached by the Federal Circuit.2  When one of these courts tells MSPB what the  law intends for MSPB to do, MSPB *must* follow the court’s instructions.  It is  this process of judicial review that ensures MSPB’s actions are not arbitrary,  capricious, or contrary to law (including the laws that give MSPB its limited  authorities).  Under limited  circumstances, other courts may have authority over a particular case under  MSPB’s jurisdiction.3  MSPB cannot disregard an opinion from a court  with authority over it any more than it can disregard a clear statute.4Where Congress’s words are clear, they must be  followed.  Where the words are unclear,  MSPB must do its best to determine what Congress wished MSPB to do.  For example, the statute does not explicitly  discuss MSPB’s power to mitigate an unreasonable penalty taken by an agency  under 5 U.S.C. § 7513 or 5 U.S.C. § 4303.  The Federal Circuit has interpreted the  legislative history for each section to mean that Congress intended MSPB should  do so for actions taken under section 7513 but not section 4303.5  The will of Congress binds MSPB, and the  Federal Circuit can tell MSPB what Congress wills for such actions, because 5  U.S.C. § 7703 places MSPB’s adverse action decisions under the jurisdiction of  that court.Every year, the Board and its administrative judges  (AJs) issue thousands (and on rare occasions tens of thousands) of adverse  action appeal decisions affecting the lives of employees.  Most of these cases garner little if any  attention beyond those who are a party to the case at hand.  But, on occasion, there have been decisions  that trigger outrage at the perceived errors of the Board.  In truth, the Federal Circuit does tell MSPB  every year that it has gotten some cases wrong.   But, from FY 2005 to FY 2015, MSPB averaged a 92% affirmation  rate at the Federal Circuit for adverse action cases – a record of success most  baseball players would envy.6Agencies are also frequently successful in  appeals before MSPB – albeit not quite as often as MSPB before the Federal  Circuit.  In that same period, for  adverse action cases that were not dismissed,7 on initial appeal, agencies opted to settle 68% of the cases, and of those  cases that were not settled, only 4% were mitigated and 15% were reversed,  while more than 80% of agency adverse action decisions were upheld.**Appeal  Settlement:**As explained in our report, Clean Record Settlement Agreements and the Law, public policy encourages  settlement.8  An agency and an employee may mutually agree  to resolve their differences before an appeal is even filed.  However, if an appeal is filed with MSPB,  before accepting a settlement agreement into the record for enforcement  purposes, the AJ must determine if:   (1) the agreement is lawful on its face; (2) the parties  freely entered into it; (3) the parties understood its terms; (4) the  parties intended for it to be enforced; and (5) the subject matter of the  appeal is within MSPB’s jurisdiction.9  If these criteria are met, it is not the role  of MSPB to object to the parties’ mutually acceptable agreement.  In fact, parties are free to reach an  agreement on their own and have the case dismissed as withdrawn without  entering the agreement into MSPB’s record for enforcement.10**Penalty  Mitigation:**As explained in our article, *Determining the Penalty*,**the Board has the responsibility to ensure  that management has selected a reasonable penalty.  There are 12 factors that will be assessed to  determine if management has acted within these limits.  One of these factors is the consistency of  the penalty with those imposed upon other employees for the same or similar  offenses.As explained in our article, *How Employees Become Similarly Situated for  Purposes of an Adverse Action Penalty*, agencies can hinder their ability to support their penalty if they:  (1) have a pattern of tolerating such  conduct and have not announced that it will not be accepted in the future; or  (2) fail to explain why two employees who seem to be similar are, in fact, so  different that disparate penalties are appropriate.  This can result in mitigation of offenses  that would not be tolerated elsewhere because the law instructs that actions  (including penalties) cannot be arbitrary or capricious.11  The Federal Circuit has held that the  reasonableness of a penalty may be suspect when a lesser offense is treated  more harshly than a more serious offense.12**Action  Reversal:**
      Sometimes MSPB must instruct agencies to cancel  an adverse action entirely, even if the offense seems completely outrageous and  the charges may appear true.  If an  agency’s action violated an employee’s constitutional rights, then MSPB is  required to reverse it, no matter how offensive the underlying conduct.13  If the agency failed to follow statutory or  regulatory procedures, and this failure caused a different outcome, then MSPB  is instructed by statute and the Federal Circuit to reverse the action.14  The Board is also not permitted to sustain  any action if the adverse action “decision was based on any prohibited  personnel practice described in section 2302(b)” of title 5.15
      **Summary:**MSPB can do only what it  has been authorized by law to do.  This  can result in some cases having outcomes that observers might conclude are  undesirable.  However, nothing in the  statute instructs MSPB that it is empowered to create the most desirable  outcome.  Rather, MSPB must assemble  established constitutional law, statutes, regulations, and case decisions and  apply that body of law to the facts presented to it.  The Board lacks the power to change the facts  given to it (such as the charges and evidence) or the laws that it has been  told to apply.
1*Singleton v. Merit System Protection Board*, 244 F.3d 1331, 1336  (Fed. Cir. 2001).  *See* *Guardians Ass’n v. Civil  Serv. Comm’n of City of New York*, 463 U.S. 582, 614 (1983) (“An  administrative agency is itself a creature of statute”); *Thompson v. Merit Systems Protection Board*, 421 F.3d 1336, 1337  (Fed. Cir. 2005) (“The Board’s jurisdiction is strictly limited to that provided  by statute, rule, or regulation”); *Strausbaugh  v. Government Printing Office*, 111 M.S.P.R. 305, ¶ 6 (2009) (explaining  that while the Board’s statutory authority to hear appeals from probationers is  quite limited, the jurisdiction granted by OPM regulation is broader).
  2  U.S.C.  § 7703; 28 U.S.C. § 1254.
  3*See, e.g., Kloeckner v. Solis*, 133 S. Ct. 596, 600 (2012) (holding  that if MSPB dismisses, on procedural grounds, an appeal involving allegations  of discrimination, the correct court for judicial review is not the Federal  Circuit, but rather a district court); 5 U.S.C. § 7703(b)(1)(B) (authorizing,  for a limited time, the use of courts of appeal other than the Federal Circuit  for judicial review of whistleblowing cases).
  4*See, e.g.,**McCormick v. Department of the  Air Force*, 98 M.S.P.R. 201,¶¶ 6-22 (2005) (Dissenting and  Concurring Opinion of Suzanne T. Marshall) (explaining extensively why she  disagreed with the majority opinion issued by the Federal Circuit in *McCormick v. Department of the Air Force*,  307 F.3d 1339 (Fed. Cir. 2002), but agreeing that because the Board is bound by  the precedential holdings of that court, the Federal Circuit’s instructions  must be obeyed).
  5*Lisiecki v. Merit Systems Protection Board*, 769 F.2d 1558, 1566  (Fed. Cir. 1985).
  6 Data is for cases  brought under chapters 75 or 43 of title 5 and excludes furlough cases.  This affirmation rate is relatively  consistent with the rate at which the Federal Circuit affirms Board decisions  under all of its combined areas of jurisdiction.
  7 The most common  reasons for a case to be dismissed include a lack of MSPB jurisdiction and the  appellant filing an untimely appeal.
  8 U.S. Merit Systems  Protection Board, *Clean Record Settlement  Agreements and the Law* (2013), at 57, available at www.mspb.gov/studies.  *See* *McDermott, Inc. v. AmClyde*, 511 U.S. 202, 215 (1994)  (explaining that “public policy wisely encourages settlements”); *Pagan v.  Department of Veterans Affairs*, 170 F.3d 1368, 1372 (Fed. Cir. 1999)  (stating that “[s]ettlement agreements may serve a useful purpose in  terminating disputes without the necessity for further administrative or  judicial proceedings”).
  9*Spidel v. Department of Agriculture*, 113 M.S.P.R. 67, ¶ 6 (2010).  *See* *Fomby-Denson v. Department of the Army*, 247 F.3d 1366, 1378 (Fed. Cir. 2001) (explaining that if a settlement  agreement prohibited the disclosure of a crime, it would be contrary to public  policy and unenforceable in most circumstances); *Mansfield  v. National Mediation Board*, 103 M.S.P.R. 237, ¶ 21 (2006) (in which the Board  declined to accept a settlement agreement in which it was “plain that the  parties [were] attempting to misuse [a Government] program for a purpose for  which it was not intended” resulting in “a combination of pay and benefits not  authorized by law”).
  10*See, e.g.,**Chapman v. Tennessee Valley Authority*, 67 M.S.P.R. 246  (1995); *Cranfield v. Tennessee Valley Authority*, 44 M.S.P.R. 384, 389  (1990).
  11*Schapansky v.  Department of Transportation*, 735 F.2d 477, 486 (Fed. Cir. 1984).
  12*Williams v. Social  Security Administration*, 586 F.3d 1365, 1368 (Fed. Cir. 2009).
  13*Ward v. U.S. Postal Service*, 634 F.3d 1274 (Fed. Cir. 2011); *Stone  v. Federal Deposit Insurance Corporation*, 179 F.3d 1368 (Fed. Cir. 1999).  *See, e.g.,* *Thomas v. U.S. Postal Service*, 116  M.S.P.R. 453, ¶ 5 (2011) (sustaining the AJ’s finding that the appellant  inappropriately touched a female employee in her private areas but holding that  if the action violated the employee’s constitutional rights as explained in *Ward*, it would be necessary to reverse  the agency’s action and order the agency to restore the appellant until he is  afforded a “new constitutionally correct removal procedure”).
  14*Diaz v. Department of  the Air Force*,  63 F.3d 1107, 1109 (Fed. Cir. 1995) (citing 5 U.S.C. § 7701(c)(2)(A)).
  15 5 U.S.C. §  7701(c)(2).  For more on substantive and  procedural errors, see our article, *Agency Officials’ Substantive and Procedural Errors and How  to Fix Them*.


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