The Merit Systems Protection Board will not rethink its 2009 decision upholding a whistleblower’s firing, even though the Office of Special Counsel said it poses “a substantial risk of chilling would-be whistleblowers.”
Former Air Marshal Robert MacLean in 2003 told the press that the Federal Air Marshals Service was pulling marshals from cross-country flights (because it couldn’t afford hotel rooms), at a time when the nation was on alert for hijackings. The Transportation Security Administration fired him in 2006, and MacLean says they retroactively designated the information he revealed as sensitive security information to justify his firing.
MSPB in 2009 upheld a court decision that backed TSA, but last month the Office of Special Counsel asked MSPB to reconsider. MacLean told Federal Times that MSPB called his attorney Sept. 6 and said it would not overturn its decision. MSPB confirmed to Federal Times it would not reopen the MacLean case, and said it sent his attorney a letter Aug. 31 that said its regulations don’t allow it to reconsider its rulings.
Despite this setback — the latest in a string of them — MacLean said he’s not giving up. He plans to file an appeal with the Federal Circuit Court of Appeals by Sept. 23.
UPDATE: MSPB points out that to be precise, it has decided not to review its July 2011 decision, which denied MacLean’s petition to review its previous 2009 decision that upheld his firing. Which still effectively means MSPB isn’t going to revisit the 2009 decision. MSPB also says it hasn’t issued a formal response to the OSC’s motion in this case.
The Merit Systems Protection Board on Jan. 26 ruled that federal employees who were fired on suitability grounds can appeal their removal to the MSPB.
In Aguzie and Barnes v. Office of Personnel Management, MSPB said that employees’ rights to appeal adverse actions still apply when OPM finds someone is unsuitable for employment and tells an agency to remove him. OPM had argued that those appeals should not be appealed under the usual adverse action procedures.
Federal unions applauded MSPB’s ruling.
“This ruling allows employees, who are highly valued by their agency and who may have worked there for many years, to defend themselves if OPM directs their agency to remove them based on some alleged misstatement in their employment application or in a reinvestigation,” said Colleen Kelley, president of the National Treasury Employees Union. “Until this decision, employees removed as a result of suitability actions had only limited appeal rights.”
Andres Grajales, assistant general counsel at the American Federation of Government Employees said the union was glad to see the decision.
“The MSPB rightly closed a loophole that allowed the federal government to circumvent Title 5, Chapter 75 due process rights when using suitability determinations to remove an employee for alleged misconduct,” Grajales said. “This decision ensures that employees will be able to exercise the full range of appeal rights guaranteed to them by statute, regardless of whether a proposed removal comes from their employing agency or from OPM.”
The Merit Systems Protection Board said today it will grant deadline extensions to people who couldn’t file documents on time because of recent blizzards and government closures in Washington and other areas. MSPB Chairwoman Susan Grundmann said anyone filing a late petition for appeal, petition for review, case-related documents, pleading or other submissions will have to include a statement explaining that the delay was due to poor weather, closure of a federal office, or lack of access to MSPB’s e-Appeal Online Web page.
That last part is important, because there were tens of thousands of people in the Washington area who were without power for days after the blizzard.
MSPB won’t automatically grant leniency, however. The clerk of the board and regional and field office judges will review the statements and “exercise discretion” when deciding to accept a delayed filing. “Normally, when MSPB receives a late filing that does not include an explanation for the delay, it issues a show cause order,” the MSPB statement said. Grundmann’s “announcement allows MSPB to accept and acknowledge findings without issuing show cause orders in appropriate cases.”