OPM to MSPB: See you in court

It's not often that the Office of Personnel Management takes the Merit Systems Protection Board (MSPB) to court but it happened earlier this year.

The case involved Ethel D. Briggs fired in 1992 from her job as executive director of the National Council on Disability after holding that position for about two and a half years. The case took a series of turns before it ultimately ended in a showdown in the federal courts between the board and OPM.

Following her dismissal Briggs went to the MSPB seeking a hearing. At first an administrative law judge ruled on behalf of the board that it did not have jurisdiction over Briggs' appeal because she was not a civil service employee.

But Briggs petitioned the full board which reversed the administrative law judge's decision on jurisdiction and decided to hear Briggs' appeal. The full MSPB then ruled that Briggs was indeed a civil service employee as defined by law even though she was appointed to her position on a noncompetitive basis.

The council her former employer argued that OPM regulations stated that council employees did not enjoy civil service rights and protections. The council cited regulations addressing the issue of who is considered an employee covered by the Civil Service Due Process Amendments Act of 1990 Public Law 101-376.

The MSPB disagreed. It ruled that Briggs' position was in the excepted service and that OPM regulations directed at positions that are generally excluded from Title V of the U.S. Code did not apply to Briggs.The council then countered that it had designated Briggs' job as a "policy position " and that excluded her from coverage. The MSPB said it lacked sufficient information to deal with that issue so it sent the case back to the administrative law judge for further review and analysis.

The administrative law judge found that the council had "never made a determination that Briggs' position was a confidential policy-making policy-determining or policy-advocating position." The judge added that even if the council had made such a determination it never communicated it to Briggs.

Accordingly the administrative law judge ruled that the council had removed Briggs without following the applicable merit systems procedural requirements. The judge ordered Briggs reinstated with back pay.The council then petitioned the full MSPB for review while OPM entered into the argument by filing an intervention petition with the board. OPM files an intervention petition when it wishes to side with one party in a case before the MSPB. In this case it was siding with the council.

In December 1994 the MSPB denied the council's petition for review and OPM's petition to intervene and it upheld the order to reinstate Briggs with back pay.

Conflict in the Law

OPM brought the case before the U.S. Court of Appeals for the Federal Circuit for further review. The court noted a conflict in two provisions of the law.

Although Briggs' job does fall within the definition of a civil service employee as described in 5 U.S.C. 7511(a)(1) she may be excluded from the procedural protection and appeals rights provided by Chapter 75 of Title V the court concluded. The court cited language that would allow the council to appoint someone to the executive director position without regard to other provisions of Title V that call for merit staffing procedures.

But the court also said the legislation that established the council and permits it to hire someone on a noncompetitive basis does not specify that such individuals lose their appeal rights.

The court said if Congress wanted to exempt a position from all the protections accorded civil service employees it could have specifically done so in the legislation establishing the council. But it didn't.

Despite the court's rejection of its overall intervention OPM did win its argument that its right to intervene in board proceedings "will be rendered meaningless" if the board "may summarily deny the agency's position for review without addressing the merits of the substantive issues raised by OPM in an intervention petition."

Essentially OPM was miffed that the MSPB simply ignored its intervention petition without the courtesy of a detailed analysis of why it differed from OPM. The court said that although OPM had a point and that it would have been better if the board had given a better explanation for why it disagreed with OPM the court lacked jurisdiction to impose such a requirement upon the MSPB.

The bottom line is that the court upheld the MSPB which means that Briggs is a bona fide employee entitled to full civil service protection.

It certainly looks as if OPM stuck its nose into something it shouldn't have and got it whacked. Clearly OPM and the MSPB are in strong disagreement on this case and the case will have an enduring impact on the ongoing relationship between OPM and the MSPB.

For details see James B. King Director Office of Personnel Management v. Ethel D. Briggs and Merit Systems Protection Board Case 95-3583 U.S. Court of Appeals for the Federal Circuit May 6 1996.Bureaucratus is a retired federal employee who is a regular contributor to Federal Computer Week and the author of Bureaucratus Moneyline a personal finance newsletter for federal employees available by subscription on FCW's World Wide Web page at www.fcw.com.

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