The Office of Personnel Management is seeking legislation requiring federal courts to hear appeals of final Merit Systems Protection Board decisions.
As the law stands now, the courts are not required to hear the government's appeals of decisions the Merit Systems Protection Board makes in favor of federal employees. The MSPB hears cases of federal employees who challenge personnel actions taken against them. While employees have the right to ask federal circuit courts to review an MSPB decision, OPM must file a petition asking the courts to hear the government's appeal.
OPM does not frequently seek such appeals. Since 1993, OPM has asked the courts to hear only 23 appeals. Of those appeals, the court has refused to hear six cases. Still, OPM contends that courts should not have the right to deny the government's right to appeal. "We are unaware of any other instance in which a federal court of appeals possesses the discretionary authority to decline to hear appeals from final decisions," OPM General Counsel Lorraine Lewis testified at a Senate hearing on OPM's proposed bill (S. 1495) last week. "No government appellant faces these consequences other than OPM."
Before OPM can bring an appeal request to the court, the law requires OPM and the Justice Department to determine that a court ruling would have a "substantial impact on a civil service law, rule, regulation or policy directive." The director of OPM and the Justice Department's solicitor general must agree that an appeal request meets that requirement. A recent case determining that federal employees may not lie while under investigation is an example of a case that met the requirement.
OPM also wants to extend the time within which it must file for an appeal from 30 days to 60 days after MSPB makes a final decision.
The two largest federal employee unions oppose the legislation. Mark Roth, general counsel of the American Federation of Government Employees, said OPM hasn't demonstrated any need for the changes. OPM "is asking the Congress to drastically expand OPM's right to mandate court intervention in these personnel cases and thereby add hundreds of thousands of dollars and years of litigation to the process," Roth said.
National Treasury Employees Union President Robert Tobias said the purpose of the current rules is to limit OPM's ability to challenge final decisions of the board. "These changes would upset the carefully crafted limitations on the availability of judicial review," Tobias said.
OPM's Lewis said the government would not use the changes to increase the number of appeals it makes.
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