MSPB Revisits Abandoning Affirmative Defenses

In the case of Thurman v. United States Postal Service (July, 2022), the Merit Systems Protection Board (MSPB) overturned their 2010 decision, Wynn v. U.S. Postal Service, regarding the abandoning of affirmative defenses. In so doing, the MSPB listed 6 new non-exhaustive factors that will be used to determine whether an affirmative defense has been waived or abandoned.

Wynn v US Postal Service Overturned

In it’s 2010 Wynn v. U.S. Postal Service decision, the Merit Systems Protection Board held that “when an appellant raises an affirmative defense, the administrative judge must address [it] in a close of record order or pre-hearing conference summary.”

Additionally, it was established that the administrative judge must identify the defense, explain the MSPB won’t consider it anymore, and give the appellant a chance to object if they indicated intent to abandon or withdraw an affirmative defense. If these steps were not followed, the MSPB had to raise the issue sua sponte, and remand was needed.

However, Wynn has been used inconsistently over the years, and the MSPB also noted that the strict remand requirements in Wynn may make unproductive use of its resources should an appellant decide not to pursue the affirmative defense.

Thus in Thurman v. United States Postal Service, the MSPB chose to rethink its approach.

MSPB Lists New Factors Regarding Abandoning Affirmative Defenses

In changing the rule in Wynn, the MSPB listed 6 non-exhaustive factors that should be used on an individual basis to decide whether an appellant has relinquished or abandoned a previously recognized affirmative defense. The factors are:

  1. The diligence and clearness with which the appellant presented an affirmative defense;
  2. The degree to which the appellant kept pursuing the affirmative defense in the proceedings or after first presenting it;
  3. If the appellant objected to a summary of the issues to be decided which didn’t include the potential affirmative defense when given a chance to object and the consequences of the failure were made clear;
  4. Whether the appellant claimed the affirmative defense or the administrative judge’s processing of the affirmative defense claim in the petition for review;
  5. Whether the appellant was represented during the appeal in front of the administrative judge. If they were not, also the level of knowledge of MSPB proceedings maintained by the appellant; and
  6. The chance that the likely desertion of the affirmative defense was because of confusion or wrong information given by the agency or the MSPB.

Interested in learning more? You can read the entire MSPB opinion at Thurman v. United States Postal Service.