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Who can appeal adverse actions to the MSPB?

On Behalf of | Aug 3, 2022 | Firm News

The Merit Systems Protection Board (MSPB) oversees employment disputes for the federal government. Largely, this means that it acts in a quasi-judicial role when employees argue that their agencies treated them unfairly.

But what does it mean for someone to be an “employee”? Can “appointees” serve as employees? These are questions that affect who can appeal their cases to the MSPB. They were also the questions at the center of a recent MSPB opinion.

Moncada v. Office of Administration

The MSPB had to address the question of its jurisdiction in the case of Daniel Moncada v. Executive Office of the President, Office of Administration (OA). In 2002, Moncada was appointed to the role of GS-09 Mail & Messenger Supervisor. This was a competitive-service position. He later earned a promotion to another competitive-service position, Supervisory Fleet Operations Manager.

In his role as Supervisory Fleet Operations Manager, Moncada was involved in three separate incidents:

  • He was responsible for processing money mail on a day that $2,091.18 went missing
  • He cautioned a subordinate about sending graphically inappropriate emails but did not report the incident
  • He drove off-route in a government vehicle to deliver lunch to his girlfriend

As a result, the OA filed four charges against Moncada and removed him from his position. Moncada appealed, and an MSPB administrative judge heard his case. The judge found that the OA had failed to prove its case on all counts. Instead, the judge said the OA had only proved its case for its charge of Unauthorized Use of a Government Vehicle. The judge reduced Moncada’s punishment from removal to a 60-day suspension.

The OA asked the Board to review the case. It argued that the Board didn’t have jurisdiction and should dismiss Moncada’s appeal.

When does the MSPB have jurisdiction?

The OA claimed the MSPB didn’t have jurisdiction over Moncada’s case because the OA isn’t an “agency” as defined by 5 U.S.C. chapter 75. The Board disagreed.

In its opinion, the Board noted that it must always be ready to address the issue of jurisdiction. Anyone can raise the issue at any time, and the Board’s opinions must be set aside if it doesn’t have jurisdiction. However, the Board didn’t agree with the OA’s assessment of the issue. The pertinent argument wasn’t whether the OA was or was not an “agency.”

Instead, the Board said there were two key elements in question:

“The only requirements for Board jurisdiction over this appeal are that the appellant was an employee who was subjected to an appealable adverse action under chapter 75.”

Again, the question isn’t whether the OA is an agency. The questions were whether Moncada was an employee and if he was subject to an adverse action. The Board made this argument based on the language of 5 U.S.C. § 7513(d). It said the language was clear: Any employee facing an adverse action under chapter 75 could appeal that action to the MSPB.

Appointees and employees

The Board wasted little time clarifying that it viewed removal as an appealable adverse action. That meant it could turn toward whether Moncada was an employee.

It noted that because Moncada served in the competitive service, his status followed from 5 U.S.C. § 7511(a)(1)(A). To qualify as an “employee,” Moncada needed to satisfy one of two requirements:

  • He was not serving a probationary or trial period
  • He had completed 1 year of continuous service outside a temporary appointment or two-year probationary period

The MSPB noted that Moncada met both requirements, not just one. Therefore, he qualified as an “employee.” It also noted that if Congress had meant to question an agency’s status, it could have written the rules differently. Instead, it found that where Congress had carved out other exceptions, it did not make an exception for employees at the OA.

The Board then went further, setting aside the OA’s argument that Moncada was actually an “appointee.” The OA argued that the President had appointed Moncada. However, it relied on a statute that said the President and designees could “employ” individuals in the OA. The Board noted that the use of “employ” contrasted with the use of “appoint” that appears elsewhere in the law. Because the same law made use of both words, the Board assumed they had different meanings. Accordingly, the Board dismissed the OA’s claim that Moncada was an appointee rather than an employee.

Why does this matter?

The questions about “employees” and the MSPB’s jurisdiction matter to any federal employee facing unjust discipline. This is especially true when we see lawmakers threaten to remove the MSPB entirely.

In Moncada’s case, the MSPB upheld the administrative judge’s findings. Without his right to appeal, Moncada would no longer hold a job in the OA. However, upon Board review, he was able to point out all the flaws in the OA’s arguments. As a result, he saw his punishment reduced from the loss of his job to a 60-day suspension.


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