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Agency Non-Compliance Targeted by New MSPB Regulations

Federal agency supervisors are about to learn they have more at stake when they fail to carry out the decisions of the Merit Systems Protection Board and its administrative judges.

Under new rules that went into effect this week, the MSPB will be better positioned to address non-complying agencies. The rule change comes as the volume of petitions for enforcement received by the MSPB has climbed to its highest level in nine years.

The new rules pertaining to petitions for enforcement adopt a hard-line stance on non-compliance to the decisions of Board members and administrative judges. Key changes to the petitions for enforcement rules include the following:

  • Clarification that federal employees can petition to the Board for the enforcement of settlement agreements.
  • Administrative judges’ compliance decisions will no longer be mere “recommendations.” They will be “initial decisions” with the potential of becoming final decisions of the Board if no petitions for review are filed.
  • Agencies must inform officials responsible for complying to Board orders that their pay can be suspended for their non-
  • compliance. Previously, agencies only had to submit the name and address of the responsible agency official.

The MSPB’s rationale for these petition for enforcement rule changes is to ensure “that all relevant evidence is produced during the regional office proceeding, and that the initial decision actually resolves all contested issues.” In the 2011 fiscal year, the MSPB received 296 petitions for review – the highest number it had received since 2002.

“These new rules put responsible agency officials on notice that the Board will go after their paychecks if the non-compliance continues,” said Tully Rinckey PLLC Managing Partner Neil A.G. McPhie.


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