2023 MSPB 18
MSPB2023Background
- Stewart received a career‑conditional competitive‑service appointment as a GS‑12 Safety Recall Specialist effective Jan 22, 2017, subject to a 1‑year probationary period.
- In January 2018 management sought to terminate him for post‑appointment reasons; Stewart submitted a resignation letter on Jan 16, 2018 effective Jan 22, 2018, but declined to change it to Jan 19 as requested.
- The agency completed a termination action with an effective date of Jan 19, 2018, while Stewart was on scheduled sick leave; notice was sent by email and overnight delivery and received after the effective date.
- The Board administrative judge reversed the termination on due‑process grounds, found the appeal timely (waived deadline for good cause), and ordered status‑quo‑ante relief; the AJ omitted an interim‑relief statement and later issued an erratum ordering interim relief.
- On review the Board (1) held the AJ lacked authority to grant substantive relief via erratum but (2) found that statutory interim relief attached by operation of 5 U.S.C. § 7701(b)(2)(A) when an initial decision is silent, accepted the agency’s certification of compliance, and affirmed reversal of the termination and the ordered restoration and back pay.
Issues
| Issue | Stewart's Argument | DOT's Argument | Held |
|---|---|---|---|
| Whether agency was required to provide interim relief when the initial decision was silent | Silence on interim relief means appellant entitled to interim relief by operation of statute | AJ erred issuing an erratum; agency should not be bound absent explicit AJ order | When initial decision is silent and appellant prevails, statutory interim relief attaches by default; AJ lacked authority to expand relief via erratum but agency’s certification of compliance satisfied interim relief requirements |
| Whether termination was effective before end of probationary tour (thus a probationary removal) | Termination notice was not delivered before the end of Stewart’s final tour (3:30 p.m. Jan 19, 2018); therefore probation ended and removal required adverse‑action protections | Agency completed necessary steps Jan 19 and delivered notice; termination effective Jan 19 | The notice’s "close of business" timing and lack of evidence of effective removal before the end of the final tour mean the termination was not effected before probation ended; thus removal required due‑process protections |
| Whether agency denied Stewart procedural due process | No prior written notice or opportunity to respond was provided; constitutional minimum due process was violated | AJ prematurely ruled on due process before discovery; agency lacked full chance to develop record | Board found no prior notice of reasons and no opportunity to respond; due‑process violation sustained; reversal affirmed |
| Proper scope of relief (status‑quo‑ante/restoration) | Full restoration ordered; resignation was tendered only to avoid termination and agency’s action nullified it | Stewart’s resignation and stated departure date could limit relief; agency should be able to present evidence to narrow relief | Board affirmed full status‑quo‑ante relief (restore effective Jan 19, 2018), rejecting narrowing because agency’s improper termination removed the incentive to resign and it failed to accept or act on the resignation |
Key Cases Cited
- Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) (procedural due process requires notice and opportunity to respond)
- Guillebeau v. Department of the Navy, 362 F.3d 1329 (Fed. Cir. 2004) (dismissal for agency failure to comply with interim relief is discretionary)
- Honea v. Department of Homeland Security, 118 M.S.P.R. 282 (2012) (agency actions before tour end can show termination effected even if notice omits time)
- Lavelle v. Department of Transportation, 17 M.S.P.R. 8 (1983) (termination of a probationer occurs upon written notice)
- Parbs v. U.S. Postal Service, 107 M.S.P.R. 559 (2007) (statement under penalty of perjury is competent evidence)
- Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984) (framework for status‑quo‑ante restoration)