Enter to open, tab to navigate, enter to select
MSPB Clarifies Civil Service Protections for Removing a Federal Government Corporation Employee
Practical Law Legal Update 9-617-7111 (Approx. 4 pages)
MSPB Clarifies Civil Service Protections for Removing a Federal Government Corporation Employee
by Practical Law Labor & Employment
| Published on 29 Jul 2015 • USA (National/Federal) |
In Epley v. Inter-American Foundation, the Merit Systems Protection Board (MSPB) held that a federal employee may appeal her performance-based removal from employment with a government corporation under chapter 75 of the Civil Service Reform Act (CSRA), even though the procedures under chapter 43 performance-based removals do not apply to government corporations.
On July 24, 2015, in Epley v. Inter-American Foundation, the Merit Systems Protection Board (MSPB) issued an Opinion and Order holding that a federal employee may appeal her removal from employment with a government corporation under chapter 75 of the Civil Service Reform Act (CSRA). The MSPB reversed an administrative judge's dismissal of the employee's appeal and held that government corporations are excluded from chapter 43 of the CSRA but are covered under Chapter 75. (No. DC-0432-15-0032-I-1, (M.S.P.B. July 24, 2015).)
Background
Sandra Epley worked as a Program Administrator for the Inter-American Foundation. In September 2014 the Foundation removed Epley from service based on her failure to meet the Foundation's performance standards. Epley filed an appeal with the MSPB challenging her removal. An administrative judge (AJ) dismissed Epley's appeal for lack of MSPB jurisdiction, finding that:
- The Foundation is a federal government corporation excluded from chapter 43 of the CSRA, which permits a federal agency to remove an employee for poor performance.
- Epley failed to make a nonfrivolous allegation that she had a right to appeal to the MSPB under chapter 75 of the CSRA, which governs the procedures for taking adverse actions against federal employees, including removing them from employment.
Epley filed a petition for review of the ALJ's decision with the MSPB.
Outcome
The MSPB:
- Determined that it lacked jurisdiction over Epley's removal under chapter 43 of the CSRA.
- Reversed the AJ's finding that it did not have jurisdiction under chapter 75.
- Remanded the matter to its regional office for further proceedings.
The MSPB noted that:
- The CSRA protects the civil service rights of federal government employees, including giving employees:
- due process rights when their employer wants to remove them from federal government employment; and
- a right to appeal their removal to the MSPB.
- Chapter 43 of the CSRA describes the process for removing an employee of a federal agency based on unacceptable job performance, but provides that an "agency" does not include a government corporation (5 U.S.C. § 4303; 5 U.S.C. § 4301(1)(B)(i)).
- Government corporations are defined in the CSRA as those "owned or controlled by" the US Government (5 U.S.C. § 103).
- Chapter 75 of the CSRA:
- describes the process for removing an employee for any reason, not limited to performance-based reasons; and
- does not exclude government corporations.
- The MSPB has adjudicated other performance-based removals under chapter 75 (Fairall v. Veterans Administration, 33 M.S.P.R. 33, 40 and Patermaster v. Inter-American Foundation, 10 M.S.P.R. 364 (1982)).
The MSPB found that:
- The Foundation is a government corporation and excluded from chapter 43 of the CSRA.
- The statute creating the Foundation did not reflect Congress's intent to give the Foundation authority to carry out a performance-based employee termination outside the bounds of the CSRA (22 U.S.C. § 290f(e)(11)).
- Congress deliberately excluded certain federal government employees (like CIA and GAO employees) from chapter 75's appeal process but did not deliberately exclude Foundation employees.
- The CSRA confers MSPB jurisdiction over appeals and that jurisdiction is only dependent on:
- the type of federal government employee involved;
- the agency the federal government employee works for; and
- the type of employment action at issue.
- Epley was an employee under chapter 75 of the CSRA and her removal is covered under the same chapter (5 U.S.C. § 7511(a)(1)(A); 5 U.S.C. § 7512(1)).
Practical Implications
The MSPB's decision in Epley clarifies that:
- The MSPB has jurisdiction over appeals by federal government employees of removals initiated by a federal government corporation.
- The appeal process under chapter 75 of the CSRA applies to these appeals, whatever the reason for the employee's removal.
For more information about the differences between personnel actions under chapter 75 and chapter 43 of the CSRA, see Adverse Actions and Disciplinary Actions in Federal Employment Comparison Chart.