MSPB Board Issues First Recent Precedential Decision in 5 Years (March 2022)

In March 2022, the Merit Systems Protections Board (MSPB) issued its first precedential decision in 5 years. A civilian employee working for the Army Department, who had been fired in her second year of her probationary period, was reinstated by overturning the decision of an administrative judge.

The State of the MSPB

The MSPB lacked a quorum since 2017 (until two nominees were confirmed by the Senate earlier in March, 2022) which essentially kept the agency from issuing precedential decisions. This lack of quorum created a growing backlog of allegedly improper instances of removal or discipline. In fact, the MSPB was completely vacant beginning in 2019.

The MSPB currently has over three thousand cases pending before the central board. Cathy Harris, who was President Biden’s choice for MSPB chair, is still awaiting confirmation as of April, 2022.

Recent MSPB Decision

The case at hand on March 28, 2022 was that of a civilian employee of the Army who was fired in 2017 after a little more than a year of service. The issue at hand was that although new Defense Department employees at that time were subject to a probationary period of two years, the Department first stated that an employee was only required to serve a probationary period of one year.

As part of 2016’s National Defense Authorization Act, two-year probationary periods were implemented for employees of the Defense Department. However, the NDAA repealed that provision in 2022 (though not taking effect until the end of December). The MSPB reinstated the employee, overturning the decision of the administrative judge.