Notable MSPB Decisions in 2016

This past year was filled with noteworthy decisions impacting Merit Systems Protection Board (MSPB or the Board) case law. Here's a look back on two cases that may have a significant impact on future MSBP litigation:

Thomas v. Department of the Navy, 2016 MSPB 34 (Sept. 27, 2016).

In this case, an employee alleged that she had been forced to choose between working in an office containing mold and irritants to which she was allergic, or being placed on "Leave Without Pay" status, thereby subjecting her to a constructive suspension. The administrative judge determined that the MSPB did not have jurisdiction over the matter, holding that the employee could not establish the agency had deprived her of a meaningful choice, and, therefore, had not established that she suffered a constructive suspension.

On appeal, the Board reversed the administrative judge's decision. The Board found that the employee had made a nonfrivolous allegation that she was constructively suspended, explaining that the choice between accepting nonpay status and working in violation of her doctor's orders was not a meaningful one.

The decision clarifies the threshold showing for jurisdiction in a constructive suspension claim and may help to avoid the improper dismissal of proper constructive discharge claims for lack of jurisdiction moving forward.

Parkinson v. Dep't of Justice, 815 F.3d 757 (Fed. Cir. 2016), reh'g en banc granted, opinion vacated, No. 2015-3066, 2016 WL 4375197 (Fed. Cir. Aug. 8, 2016).

This case came before the Federal Circuit on appeal from the Board's decision, which sustained the employee's removal for lack of candor under oath and obstruction of process. The Court sustained the obstruction charge but reversed the Board's decision with respect to the lack of candor charge. Key to the court's decision was its analysis distinguishing between "lack of candor" and "falsification." It explained that "lack of candor" requires two elements: "that the employee failed to be fully forthright, and that the employee did so knowingly." Id. at 766.

The Board upheld the lack of candor charge based on the appellant's conflicting statements—first that he had asked a person to engage in impropriety, and later that he had directed that person to do so. Parkinson v. Dep't of Justice, 121 M.S.P.R. 703 (2014) (Table). The Board found this was an indication that the appellant intended to deceive the Office of Inspector General so as to minimize his culpability.

But the court determined that this interchange of words only indicated that the appellant had failed to be fully forthright, not that he had done so knowingly. The court emphasized that it was the agency's burden to show that the appellant "knowingly" failed to be fully forthright, and that making the determination based on the absence of other plausible explanations improperly shifted this burden.

Renn Fowler, Esq., author of MSPB Charges and Penalties, A Charging Manual, and Of Counsel to Gary M. Gilbert & Associates, P.C., called this the most important MSPB case of the year. In August, the Federal Circuit granted the Agency's petition for an en banc rehearing, the result of which is still pending.

Here at The Law Offices of Gary M. Gilbert & Associates, P.C., our team of dedicated MSPB attorneys are uniquely experienced at navigating the dynamic legal landscape of the Board's law. To learn more about our services and how we can help you, contact us today.