Informal adjudication of appeals by federal employees (or applicants) challenging covered adverse agency actions and/or prohibited personnel practices by federal agencies. Adjudications are conducted by administrative judges and arise under a variety of federal statutes (or MSPB regulations), including federal civil service laws, the Uniformed Services Employment and Reemployment Rights Act, Veterans Opportunities Act, and the Whistleblower Protection Act of 1989. Most of the matters heard by AJs relate to adverse agency actions -- removals, suspensions of more than 14 days, reductions in grade or pay, or furloughs of 30 days or less. (See 5 CFR Part 1201, Subpts. A, B, C, E, F & H). MSPB has a regional/field office structure, so cases are heard throughout the country by AJs sitting in regional or field offices.
Agency:
Scheme Nickname:
"Main" (informal) adjudication scheme - Administrative Judges
Comments/Notes on Adjudication Structure:
Most initial decisions issued by Administrative Judges may be appealed to the Board; however, there are a few exceptions -- including decisions concerning removal of members of the Senior Executive Service.
Types of Adjudication:
Type B
Resources & Articles:
MSPB Judges' Handbook (Oct. 2007): http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=241913&version=242182
Lisa Rein,"MSPB Swamped by Volume of Furlough Appeals," Washington Post, Nov. 7, 2013
MSPB FY2013 Annual Report: http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=1038222&version=1042269&application=ACROBAT
Distinctive Features:
* Amicus Briefs:MSPB not only accepts amicus briefs by interested parties (at the presiding officer's discretion), but the Board may also issue solicit amicus briefs on its own motion (generally, by issuance of Federal Register notices). (5 CFR 1201.34(e))
*E-Filing: MSPB has a detailed and extensive set of e-filing regulations. Private parties are encouraged, but not required, to e-file. Agencies and attorneys litigating in the Washington Regional Office and Denver Field Office are required to e-file absent special circumstances. (See 5 CFR 1201.14)
*Video/Telephone Hearings: MSPB rules do not expressly provide for (or authorize) video or telephone hearings, though the agency uses both types of hearings when appropriate. When issuing a final rule revising certain procedural rules in 2012, the Board declined to to address video/telephone hearings in its rules when asked by a commenter to do so. The Board stated that it may take up this issue in the future. (See 77 Fed. Reg. 62,350, 62,355 (Oct. 12, 2012)
* Pro Bono Program: MSPB has formed partnerships with several law school clinics in San Francisco and Denver, a law firm in Boston, and discussions with others to improve availability of pro bono representationfor pro se appellants. (See MSPB FY2013 Annual Report, p. 7)
Other Comments:
* No Summary Judgment: Caselaw interpreting the Civil Service Reform Act (5 USC 7701), has held that the Board is barred from issuing summary judgment when the appellant-employee requests a hearing. See Crispin v. Dept. of Commerce, 732 F.2d 919 (Fed. Cir. 1984)
* Unprecedented Budget-related Events in FY2013 Leads to Massive Filings/Caseload: Furlough appeals related to budget sequestration lead to filing of 32,400 appeals -- about a five-fold increase over the Board's average annual filings. MSPB hired temporary employees to assist in docketing cases, and established a furlough appeal "strike team" at Headquarters to assist regional and field offices in docketing. Also, the government shutdown idled most MSPB employees for several weeks. Taken together, these two events placed enormous pressure on MSPB adjudications, and significantly increased the agency's pending caseload.
Verified by Agency:
Not verified
Is this a Major Adjudication:
Yes