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LAW REVIEW 1103
The MSPB Is Finally Catching On
By Captain Samuel F. Wright, JAGC, USN (Ret.)
1.1.1.8—USERRA
Applicability to Federal Government
1.4—USERRA Enforcement
8.0—Veterans’ Preference
Dean v. Office of
Personnel Management, 2010
MSPB 213 (Merit Systems Protection Board Nov. 2, 2010).
In a front-page article dated
Dec. 26, 2010, the Washington Post reported that, partly as
a result of this case, the President will eliminate the Federal Career Intern
Program (FCIP). The Post reported: “President Obama plans to issue an executive
order, perhaps as early as this week, ending a federal internship program that
critics say circumvents proper hiring practices. Since it began in 2001, the Federal Career
Intern Program has been used to hire more than 100,000 people—few of them
interns as traditionally understood … The program has drawn fire from federal
employee unions and from the government board that oversees federal hiring
practices, which ruled in November that the program undermined the rights of
veterans, in particular, who were seeking federal work.” Joe Davidson, “Obama plans to shut down
federal internship program,” Washington Post Dec. 26, 2010, pages A1 and A6.
The Merit Systems Protection
Board (MSPB) is a quasi-judicial federal agency created by the Civil Service
Reform Act of 1978 (CSRA). The MSPB
adjudicates cases involving disputes between federal civilian employees and
federal agencies, as employers, under many different statutes. The Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) gave the MSPB jurisdiction to
adjudicate claims that federal agencies had violated the reemployment rights of
federal employees, former federal employees, and applicants for federal
employment. The Veterans Employment
Opportunities Act of 1998 (VEOA) gave the MSPB jurisdiction to adjudicate
claims that federal agencies have violated the veterans preference rights of
federal employees and applicants, under the Veterans Preference Act of 1944
(VPA).
The MSPB consists of three
members, each of whom is appointed by the President with Senate
confirmation. An MSPB case is heard
initially by an Administrative Judge (AJ) of the MSPB. The AJ conducts a trial and then makes
findings of fact and conclusions of law, and orders relief if appropriate. Either party may appeal to the MSPB itself,
which sits here in Washington, DC.
The final MSPB decision can
be appealed to the United States Court of Appeals for the Federal Circuit, a
specialized federal appellate court that has nationwide jurisdiction over
certain kinds of cases, including appeals from MSPB decisions. The Federal Circuit has a long and
distinguished history of reversing the MSPB for being insufficiently
pro-veteran in USERRA and VEOA cases.
Please see Law Reviews 67, 91, 151, 159, 189, 0614, 0637, 0722, 0726,
0729, 0747, 0752, 0755, 0764, 0826, 0826 Update, 0850, 0901, 0901 Update, 0904,
0921, 0927, 0937, 0958, and 1028. With
two new members since January 2009, the MSPB finally seems to be catching on,
and the Dean case is a good illustration of this favorable development.
I invite the readers’
attention to www.roa.org/law_review. You will find
more than 750 articles, along with a detailed Subject Index and a search
function, to facilitate finding articles about very specific topics.
Congress enacted USERRA in
1994, as a long-overdue rewrite of the Veterans’ Reemployment Rights Act
(VRRA), which dates back to 1940. In its
first case applying the VRRA, the Supreme Court held: “This legislation is to be liberally
construed for the benefit of those who left private life to serve their country
in its hour of great need.” Fishgold
v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946). See also Boone v. Lightner, 319 U.S.
561, 575 (1943) (requiring similar liberal construction of the Soldiers’ and
Sailors’ Civil Relief Act). The Federal
Circuit has taken seriously the Supreme Court’s command to construe liberally
laws enacted for the benefit of those who serve or have served in response to
the nation’s call.
David Dean is a
preference-eligible veteran with a 30% service-connected disability. He made a broad complaint that the Office of
Personnel Management (OPM) and federal agencies generally use the FCIP to
circumvent the VPA. Because FCIP
vacancies are not generally posted on “USA Jobs” or another website available
to the general public, Dean and similarly situated veterans are unable to apply
for those vacancies. Dean “alleged that
federal agencies frequently post FCIP vacancy announcements on web sites that
are accessible only to students and alumni of particular colleges, and that
agencies send recruiters to college job fairs, who make appointments under FCIP
‘on the spot.’ The appellant [Dean]
alleged that as a result of such practices he and other veterans are being shut
out of job opportunities.”
In a unanimous decision, the three-member MSPB agreed
with Dean’s claims and ordered OPM to reform the FCIP to bring it into
compliance with the VPA and the VEOA. It
appears that the Obama Administration is complying with this MSPB order by
eliminating the FCIP altogether. We will
keep the readers informed of new developments on this important issue.
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