On May 13, the Partnership for Public Service hosted a FedSupport webinar featuring two former Merit Systems Protection Board leaders to discuss the current role of the MSPB and to help federal employees better understand how to navigate the appeals process.
Attendees submitted significantly more questions than we could address during our webinar. To answer them, we sat down with Ray Limon, former vice chairman of the MSPB and founder of Merit Service Advocates.
Other blogs in this series can be viewed here, including one on MSPB processing, authority and independence, as well as another on reduction-in-force procedures, employee appeal rights and important employee documentation.
What happens to employees’ positions, benefits and appeal rights when an agency is eliminated or its functions are transferred to another agency?
The answer depends on whether the agency closure involves a transfer of functions or a complete abolishment—and whether proper reduction-in-force procedures are followed.
Transfer of functions
When a function transfers to another agency, the employees performing that function generally transfer with it, without having to compete for the position, provided the transfer is legitimate (5 CFR § 351.301). Employees who decline a reasonable offer or for whom no position is available are then subject to reduction-in-force procedures. Importantly, service credit, veterans’ preference and competitive status rights carry over.
Complete elimination without transfer
If an agency is eliminated and its functions are abolished, all affected employees are subject to reduction-in-force procedures. This means the agency must define proper competitive areas, build retention registers, issue 60-day advance written notice and follow bump-and-retreat rules. Employees separated through this process retain their rights to MSPB appeal (under current law), severance pay if eligible, continued federal health and life insurance benefits for a defined period, and placement priority through ICTAP (Interagency Career Transition Assistance Plan).
How does the MSPB review cases involving large-scale restructuring, such as the dismantling of agencies or the reassignment of functions?
The MSPB’s review in restructuring cases is procedural, not constitutional. The board does not rule on whether a president lawfully ordered an agency to be dismantled, whether an executive order violates the appropriations clause or whether Congress authorized the elimination—federal courts do.
What the MSPB can review is whether the agency complied with reduction-in-force laws and regulations in carrying out whatever personnel actions resulted from the restructuring. For former U.S. Agency for International Development employees, for example, the MSPB can examine whether the competitive area was properly defined, whether retention registers were correctly constructed, whether employees received adequate and timely notice, and whether veterans’ preference and bump-and-retreat rights were respected.
In terms of remedies for employees of an eliminated agency, the MSPB has authority to order back pay and, in appropriate circumstances, other forms of corrective relief. The mechanics of fashioning remedies when an agency no longer exists raise complex questions that courts and the board are continuing to work through—making this an actively developing area of law.
What appeal rights do probationary employees have if they believe their termination was based on discrimination, retaliation or procedural violations?
Probationary employees have significantly more limited MSPB appeal rights than permanent employees—but they are not without any recourse. Key distinctions include:
Standard performance or conduct terminations
Generally, not appealable to the MSPB. Agencies have broad discretion during probation.
Partisan political affiliation or marital status
If the termination occurred for these reasons, the employee can currently appeal to the MSPB—although this is a narrow ground and may be challenging to prove. These appeal rights come from Office of Personnel Management regulations rather than a statute, and they are currently being challenged in a proposed OPM rule, “Streamlining Probationary and Trial Period Appeals.”
Preference-eligible veterans
A probationary employee who is a preference-eligible veteran may appeal to the MSPB after completing one year of continuous service (5 U.S.C. § 7511).
Discrimination
Probationary employees can pursue a complaint with the Equal Employment Opportunity Commission for discrimination based on race, color, religion, sex, national origin, age, disability or genetic information, regardless of MSPB rights.
Whistleblower retaliation
Probationary employees covered by the Whistleblower Protection Act may file an Individual Right of Action appeal with the MSPB, if they can show a protected disclosure was a contributing factor in their termination. An IRA appeal generally follows only after the employee first seeks corrective action from the Office of Special Counsel (OSC) and either OSC denies relief, or its statutory review period lapses without action.
Ongoing litigation continues to examine whether certain mass probationary terminations were, in substance, disguised reductions in force rather than genuine, individualized performance actions—a distinction that could affect the appeal rights described above.
This blog post is part of our FedSupport series, bringing you tailored information from experts on an array of topics affecting federal employees—from policy analysis to career and benefits support.
Please note: This content offers general informational and educational purposes only and does not constitute legal advice. This transcript was lightly edited for clarity.
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