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Attorney Debra D'Agostino Comments on Fate of MSPB

Written by: Federal Practice Group
Written by: Federal Practice Group

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Federal News Radio turned to Attorney Debra D'Agostino for insight into the future of the Merit Systems Protection Board (MSPB)—the body that protects federal employees from unjust or unlawful actions by agency managers. The three-member board currently only has two members and will shrink further to one member come March 2017.

While dealings with the MSPB are likely to remain unchanged until that time, Attorney D'Agostino did express some concern about the long-term prospects of the judicial board. "The larger concern that people who do what I do have is whether or not the board is going to be around much into the future," she told Federal News Radio.

With President-Elect Donald Trump's promises to make it easier to fire federal employees and lawmakers' continued focus on the board, it is unclear what form the board will take in 2017 and beyond. This year, lawmakers clashed with board when it reversed the Veterans Affairs’s decision to remove executives.. There are several pieces of legislation being considered that would limit federal employees’ access to the board—thus making them more exposed to firing without MSPB intervention.

"It’s clearly on the agenda and it has been for the past while, and I don’t see it going away,” D’Agostino added. “The only thing that’s really been stopping it is that Obama said that he’d veto. Once that’s gone, there’s going to be a lot of room to move ahead with big, big changes. Maybe not doing away with the board entirely, but certainly that’s a possibility."


While the fate of the MSPB is decided, Attorney D'Agostino predicts that there will be little change with her dealings with the board while it is short one or even two members. "It’s really going to be the petitions for review, the appeals that get filed of the [administrative judges’] decisions that are going to be log-jammed,” she told Federal News Radio. “That’s not a huge percentage of the cases. By and large the cases will get processed at the regional office level just as they’re getting processed now.”

The MSPB is facing a backlog of claims from current or former federal employees who believe that they were treated unfairly as a holdover from the furlough appeals created by the government shutdown. Even if new board members were selected and confirmed by Congress, it would take them some time to familiarize themselves with these cases and be informed enough to render decisions on them.

You can read and hear more of Attorney D'Agostino's insight at "MSPB will have 1 voting member in March. What happens next?" on the Federal News Radio here.

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