Samuel F. Wright

Captain, JAGC, USN (Ret.)
Director, Service Members Law Center
(800) 809-9448, ext. 730
Email: swright@roa.org
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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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