MSPB Finalizes Rule Changes, Limits Whistleblowers’ Rights with Election of Remedies Change

Here’s the final rule.

Analysis to follow later this weekend, but here’s the most important part:

Section 1209.2 Jurisdiction

The MSPB proposed to change the reference in paragraph (a) from 5 U.S.C. 1214(a)(3) to 5 U.S.C. 1221(a). In addition, in light of a 1994 amendment to 5 U.S.C. 7121 adding paragraph (g), the MSPB proposed to overrule a significant body of Board case law and amend this regulation to provide that an employee affected by a prohibited personnel practice “may elect not more than one” of 3 remedies: (A) An appeal to the Board under 5 U.S.C. 7701; (B) a negotiated grievance under 5 U.S.C. 7121(d); or (C) corrective action under subchapters II and III of 5 U.S.C. chapter 12, i.e., a complaint filed with OSC (5 U.S.C. 1214), which can be followed by an IRA appeal filed with the Board (5 U.S.C. 1221). The proposed amendment also made clear that an election is deemed to have been made based on which of the 3 actions the individual files first. The proposed rule further stated that when taking an otherwise appealable action, agencies would be required, per revised 5 CFR 1201.21, to advise employees of their options under 5 U.S.C. 7121(g) and the consequences of such an election.

Several commenters [Tom Devine, AFGE] object to the new election of remedies provision contained in paragraph (d). These commenters argue that the election requirement in paragraph (d) is not required under 5 U.S.C. 7121(g) because that statute applies only to employees covered by collective bargaining agreements. As explained in the supplementary information section of the proposed rule, the MSPB is convinced that a plain reading of 5 U.S.C. 7121(g) indicates that an individual who has been subjected to an otherwise appealable action, but who seeks corrective action from OSC before filing an appeal with the Board, has elected an IRA appeal and is limited to the rights associated with such an appeal. The proposed rule therefore adopted the plain language reading of 5 U.S.C. 7121(g) and proposed to overrule Massimino v. Department of Veterans Affairs, 58 M.S.P.R. 318 (1993) and its progeny.

An employee who is not covered by a negotiated grievance procedure does not have all three of the options listed in subsection 7121(g)(3), as he or she cannot elect the negotiated grievance procedure. That does not mean, however, that the statute therefore contemplates that such an individual may elect both of the other two options; it simply means that the individual has to select one or the other of those two options. We note in this regard that the term “employee” in 5 U.S.C. chapter 71 is not limited to those covered by negotiated grievance procedures. See 5 U.S.C. 7103(a)(2).

Several commenters [OSC, Passman & Kaplan, NELA] expressed concern about the relationship between elections following proposed and effected personnel actions. One commenter noted that when an employee has filed a complaint with OSC at the proposal notice stage and thereafter wants to file a direct appeal once an action has been taken, the employee will be required to withdraw the OSC complaint regarding the proposal notice in order to get full direct appeal rights as to the removal. The MSPB does not agree that the new election provision would require this result. In the MSPB’s view, an employee would be able to make separate elections for both the proposed and effected actions and pursue the remedy selected for each action. The MSPB understands that there remain practical concerns when an individual wants to pursue with OSC the claim that a proposal notice was retaliation for whistleblowing, while pursuing a direct appeal with the Board for the effected adverse action. In particular, there would be the possibility that the adverse action appeal might proceed toward the issuance of an initial decision before OSC has the opportunity to investigate the claim and pursue corrective action on the individual’s behalf. We note in this regard that the appellant in the adverse action appeal could seek a stay under section 1201.28 or a dismissal without prejudice under section 1201.29, to ensure that OSC has an opportunity to complete its investigation and seek corrective action.

A commenter [this author] agreed that the MSPB had no choice but to reconcile its regulations regarding election of remedies with the requirements of 5 U.S.C. 7121(g) but argued that the MSPB should not apply the new election provision retroactively as retroactive application is not favored in the law and would lead to confusion and increased litigation. The new election of remedies provision does not address whether it may be applied retroactively. However, with regard to this issue, it must be noted that Congress amended 5 U.S.C. 7121 to add paragraph (g) in 1994. 103, section 9(b), 108 Stat. 4361, 4365-66 (1994). There would be difficult interim questions concerning cases that are already in the pipeline. One issue would be whether, despite the seemingly clear language and consequences of § 7121(g), the appellant should be deemed to have made a valid and binding election. An argument might be made that an election is not binding unless it constitutes a knowing and informed decision. Cf. Atanus v. Merit Systems Protection Board, 434 F.3d 1324, 1326-27 (Fed. Cir. 2006) (concluding that the appellant made a knowing and informed, and therefore binding, election under § 7121(e)). The proposed regulation does not resolve this question, which would be resolved in particular appeals. If the Board were to hold that some elections were not binding, a related question would be whether the Board should excuse the untimely filing of the Board appeal, which would be filed well after the 30-day deadline of 5 CFR 1201.22(b)(1). Again, this would be resolved in particular appeals.

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