September 11, 2020
Gilbert Employment Law, PC, in conjunction with Cohen, Milstein, Sellers, & Toll, PLLC, has filed a putative class action lawsuit in federal court, challenging a federal agency’s policy of blocking its employees from fighting personnel actions before the Merit System Protection Board (MSPB). The case, Alvarez et al. v. Department of Health and Human Services, Civil Action No. 20-cv-02626 (CCB), argues that by preventing employees from challenging personnel actions before the MSPB, the Department of Health and Human Services (DHHS) is denying its employees of their constitutionally-guaranteed rights.
Most federal employees cannot be subjected to severe discipline without being provided with the opportunity to respond to the allegations against them. If a federal agency upholds certain proposed disciplinary actions (such as removals, reductions in grade or pay, suspensions for more than 14 days, or furloughs for 30 days or less), the employee has the right to challenge the action before the MSPB. The MSPB is a federal agency that oversees and adjudicates the propriety of these kinds of serious discipline. It exists to, among other things, overturn disciplinary actions that have been taken due to discrimination, retaliation against whistleblowers, and failure to accommodate employees’ medical conditions.
The MSPB is composed of three members, appointed by the President, by and with the advice and consent of the Senate. In order to issue final decisions, the MSPB must have a quorum of at least two members. Since January 2017, however, the MSPB has lacked a quorum, and since that time, it has been hobbled by the Trump administration’s failure to appoint any members to the Board. Beginning on March 1, 2019, for the first time in the MSPB’s history, none of the three MSPB Board Member positions was occupied by an officer confirmed by the U.S. Senate. The Board’s three seats remain empty, and as a result, it cannot hear any appeals.
The Board acts as an appellate body to the decisions of its administrative judges, who issue initial decisions on disciplinary actions. Although there has not been a quorum since January 2017, the MSPB has taken the position that its administrative judges may continue to oversee and rule on adverse action cases. Beginning in August 2019 and continuing to today, DHHS has challenged that position, resulting in its employees’ cases being placed on indefinite hold.
Relying upon the Supreme Court’s decision in Lucia v. Sec. & Exch. Comm’n, 138 S. Ct. 2044 (2018), DHHS argued that in the absence of any Senate confirmed MSPB members, MSPB administrative judges lack the delegated authority required to adjudicate appeals of adverse employment actions. As a result, DHHS requested that the cases be placed on hold until a Board is appointed. In response, the MSPB’s administrative judges have placed these cases on indefinite hold.
By using this strategy, over the course of the past year, DHHS has sought and was granted an indefinite hold in 77 appeals filed by at least 72 current or former employees of DHHS. These employees have no other method by which they can challenge their employment actions, which may be improper (for example, due to whistleblower retaliation or discrimination). The Alvarez case was filed to end this unconstitutional practice by DHHS.
Alvarez is currently pending before Judge Catherine Blake in U.S. District Court for the District of Maryland. The putative class contains at least 72 members, all current and former employees of the Department of Health and Human Services, who have been subjected to adverse employment actions and thereafter denied rights guaranteed by statute to challenge the actions taken against them. All media inquiries may be directed to Plaintiffs’ counsel Kevin Owen, by calling 301-608-0881. Plaintiffs are represented by Kevin Owen, Gary Gilbert, Christopher Bonk, Alexis Tsotakos, and David Norken, of Gilbert Employment Law, P.C.; and by Joseph Sellers and Brian Corman of Cohen, Milstein, Sellers, & Toll, PLLC.