216 MILITARY LAW REVIEW [Vol. 161
REPRESENTING THE AGENCY BEFORE
THE MERIT SYSTEMS PROTECTION BOARD:
A HANDBOOK ON MSPB PRACTICE AND PROCEDURE1
REVIEWED BY RICHARD W. VITARIS2
For many years, federal agency labor attorneys learned their business, at least in part, from a concise, blue-covered handbook last published by the Office of Personnel Management (OPM) in 1984 called Representing the Agency Before the Merit Systems Protection Board.3 The book provided a step-by-step explanation of how to represent an agency before the Board and even included sample pleadings. It was a godsend for the novice and overworked administrative law attorney, who lamented its loss when it went out of print.4
Since 1984, OPM, like many federal agencies, has downsized, and the quality and quantity of guidance OPM provides to personnel specialists and labor law attorneys has eroded. The Federal Personnel Manual, which had provided detailed guidance on processing personnel actions, was abolished by the Clinton administration to cut down on "red tape."5 It has become more difficult than ever for an agency to get its actions sustained before the Board.6
Representing the Agency before the Merit Systems Protection Board is now back. Mr. Ashner, a co-author of OPM's original publication, has authored a complete rewrite, which is up-to-date and expanded to include new areas of MSPB practice. The book reflects Mr. Ashner's considerable experience in civil service law and procedure. Mr. Ashner served as a hearing officer with the Federal Employee Appeals Authority, a predecessor agency to the MSPB. At the MSPB, he prepared final decisions for the full Board on petitions for review. While at OPM, he coordinated OPM intervention in MSPB cases, and he advised and trained legal and personnel officials from other agencies on employee relations and appeals issues.7
The new book provides the equivalent of a weeklong introductory training course on MSPB practice. Mr. Ashner takes the mystery out of adverse action appeals by explaining in plain English concepts such as nexus, the Douglas factors,8 and the performance opportunity period.9 The book provides far more than an overview, with considerable discussion on the most typical case, a disciplinary action taken against an employee for misconduct under Chapter 75.10 The book contains a more limited but nonetheless adequate treatment of performance based actions Chapter 43,
even including a discussion of how an agency representative should choose between taking an action under Chapter 75 and under Chapter 43.11
It remains, however, an introductory primer and not a treatise on MSPB law and procedure. Treatment of the more exotic types of Board cases such as individual right of action (IRA) appeals under the Whistle-blower Protection Act,12 or the new and ever expanding area of claims under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA),13 is insufficient, in that an agency representative is forced to look elsewhere for adequate introductory guidance on these types of cases.
Determining the length and scope of a "Handbook on MSPB Practice and Procedure," as the book is subtitled, is no easy task. Mr. Ashner's 600 page volume strikes a fine balance between the gargantuan treatise by Peter Broida, A Guide to Merit Systems Protection Board Law and Practice,14 which weighs in at a hefty 3544 pages, and one of the superficial 50-100 page guidebooks for supervisors about the MSPB or about adverse actions that are available from a number of publishers.15
Mr. Ashner states in his preface that his goal is to prepare a concise summary, in plain English, of everything an agency representative needs to know to be an effective advisor and advocate in MSPB cases.16 The book is clearly written. It is a useful guidebook not only for its intended audience of agency representatives, but also for agency managers and supervisors who seek to learn more about the disciplinary process; appellant's representatives may also find it useful.
An agency representative need not consult any reference books other than Mr. Ashner's to prepare for a typical adverse action appeal, except for
the individualized research into MSPB case law necessary to address the particular facts and circumstances of the case. The book, however, does not meet the author's goal of telling an agency representative everything he needs to know to be an effective advisor and advocate. This failure is not so much a criticism, as it is a statement that Mr. Ashner's goal was too ambitious given the complexity of current MSPB practice and procedure.
For example, Mr. Ashner's book does little to explain the complexity of charging before the MSPB, except to lay out some bare-boned boilerplate.17 He does not discuss the pros and cons of whether to charge an employee with a specific label charge, (that is, theft of government property versus using a generic charge such as, conduct unbecoming a federal employee) or even using no label for the charge at all.
An effective agency representative should know that nothing in law or regulation requires that an agency affix a label to a charge of misconduct. If the agency so chooses, it may simply describe actions that constitute misbehavior in a narrative form, and have its discipline sustained if the efficiency of the service suffers because of the misconduct.18 If, on the other hand, an agency chooses to label an act of misconduct, then...