On May 16, 2023, the Merit Systems Protection Board (“the Board”) issued a precedential opinion affirming an initial decision that reversed our client’s wrongful termination on due process grounds.
This opinion is a long-awaited victory for our client, who is represented by Partner Kristin D. Alden and Tyra M. Robinson.
The Initial Appeal
In January 2018, the Department of Transportation (“the Agency”) terminated our client without due process after the end of his one-year probationary period. Our client’s appointment anniversary was Monday, January 22, 2018 – meaning that any probationary termination action needed to be effected before the end of his tour of duty on Friday, January 19 at 3:30 pm.
Instead, on Friday, January 19, while our client was on sick leave, the Agency issued his notice of termination by email at his work address and by overnight delivery to his home address. Our client was notified of his termination when the Agency’s overnight delivery arrived on Saturday, January 20 – after the end of his probationary period.
Because the Agency terminated our client without prior notice and an opportunity to respond, but also after he successfully completed his probationary period, we filed an appeal with the Merit Systems Protection Board. After a hearing, the administrative judge issued an initial decision reversing our client’s termination. The administrative judge found no credible evidence that the Agency informed our client of his due process rights to pre-termination notice and an opportunity to respond.
The Board’s Opinion
The Board’s opinion affirms the initial decision and emphasizes that termination at the end of a probationary employee’s final tour of duty does not satisfy the regulatory requirement that a termination be effected before the end of his final tour of duty.
The Board’s opinion also discusses the issue of interim relief for our client at length. Although the initial decision failed to include interim relief for our client, the administrative judge ultimately issued an erratum to address this omission and ordered the Agency to provide interim relief in the case either party should file a Petition for Review to the Board.
Although the Board’s opinion finds that an administrative judge lacks authority to address interim relief in an erratum, the Board holds that appellants are entitled to interim relief by operation of statute 5 U.S.C. § 7701(b)(2)(A). The Board holds that this statute entitles an appellant who prevails in an initial decision to interim relief by default when the decision is silent on that issue.
If you have questions about this matter or another employment-related issue, please request a consultation with one of our experienced attorneys.
