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MSPB Has Issued Its First Bit of Precedent in Five Years

The body that adjudicates the validity of discipline and removal of federal workers decided that it cannot overrule laws governing probationary periods, even if an agency gave the employee bad info on when they end.

The Merit Systems Protections Board on Thursday issued its first precedential decision in half a decade, overturning an administrative judge decision reinstating a civilian Army Department employee who was in the second year of her probationary period when she was fired.

Until two nominees to the body—one Democrat and one Republican—were confirmed by the Senate earlier this month, the MSPB had lacked a quorum since 2017, effectively preventing the agency from issuing decisions on a growing backlog of allegedly improper instances of discipline or removal. And the board was totally vacant beginning in 2019, meaning federal workers could not even receive stays of their removal while their cases were pending.

The quasi-judicial agency has a backlog of more than 3,500 cases pending before its central board. In the three weeks since their confirmation, the two board members have already issued 18 nonprecedential decisions. President Biden’s pick to chair the MSPB, Cathy Harris, still awaits a final confirmation vote, after Republican senators criticized her history of posting partisan tweets disparaging some conservatives during a confirmation hearing last year.

In Thursday’s case, a civilian employee of the Army was fired in 2017, after just over one year of service. At issue is the fact that although new employees at the Defense Department at the time were subject to a two-year probationary period, the department initially stated that the employee was only subject to a one-year probationary period.

Two-year probationary periods for Defense Department employees were implemented as part of the 2016 National Defense Authorization Act. The 2022 NDAA repealed that provision, although it will not go into effect until Dec. 31.

An administrative judge reinstated the fired employee, mistakenly relying on the probationary period statute “as it was previously written” before the 2016 NDAA was enacted. The Pentagon appealed the decision, bringing it to the MSPB for review.

In the board’s decision, the members acknowledged that the department erred in providing the employee with the wrong information about the length of her probationary period, but said that in the case of probationary periods, the law supersedes those mistakes.

“The appellant . . . reasserts that she completed one year of current continuous service before her removal, and that one year was all that was required to satisfy her probationary period,” the board wrote. “In doing so, the appellant points to the vacancy announcement and the original SF-50 that followed her appointment, each of which reflected that the position required only a one-year probationary period. Nevertheless, the statutes control the board’s jurisdiction in this case, not the agency’s misstatements.”