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June 2012

MSPB Proposes Changes to Governing Regulations

By John V. Berry,

For the first time since 1979, the Merit Systems Protection Board (MSPB) has sought to amend their rules of practice contained within Title 5 of the U.S. Code of Federal Regulations (CFR).  The new proposed rules are available in the Federal Register at  The changes to the regulations governing practice before the MSPB are extensive and readers are invited to review them.  The MSPB has sought comments to these proposed regulations by July 23, 2012.

On first review, there appear to be a number of changes relating to timing issues in cases and some changes to the MSPB's discovery procedures.  There are a number of other changes as well.  Our law firm represents federal employees before the MSPB and can be contacted at for legal representation before the MSPB. 


MSPB Reverses Removal Based on Due Process Argument

By John V. Berry,

In an interesting new case, Jenkins, v. EPA, 2012 MSPB 70 (May 4, 2012), the
Merit Systems Protection Board (MSPB) reversed a removal decision by a federal agency because it had not provided due process to the federal employee involved. 

Background of Jenkins Due Process Case

In this case, the federal employee had been proposed for removal from her position with the EPA.  The Agency then removed the employee, allegedly relating to threats made and abusive language in the workplace.  The employee appealed to the MSPB, but an administrative judge had dismissed her claims, upholding the removal.  The employee then filed for review of the decision by the Board of the MSPB. 

The MSPB reviewed and reversed the administrative judge because the federal agency had denied the federal employee minimum due process of law.  In particular, the MSPB had found that the Agency had failed to give the employee with notice of an aggravating penalty factor used as a basis for discipline in her case, ruling that: “when an agency intends to rely on an aggravating factor as the basis for the imposition of a penalty, such factors should be included in the advance notice of [the] adverse action so that the employee will have a fair opportunity to respond to those factors before the deciding official.”  Jenkins, at 4.

What the Jenkins Decision Means for Federal Employees at the MSPB

One of the most important issues that will might result here is that administrative judges at the MSPB might now take more care in cases involving information used by an Agency in a disciplinary action which has not been provided to a federal employee prior to a decision being made on discipline. The Jenkins decision makes it clear that the Board believes that federal agencies, prior to making adverse action decisions, must first provide federal employees advance notice of significant information relating to proposed adverse actions.  This law firm represents federal employees in these types of federal employment matters and can be contacted at (703) 668-0070 or to arrange for an individual consultation regarding these types of matters.