FBI Must Demonstrate Why It Should Not Be Sanctioned for Failing to Comply With MSPB Order

The Merit Systems Protection Board recently issued a show cause order to the Federal Bureau of Investigation after the Bureau failed to timely comply with a Board decision awarding a special agent two-and-a-half years of back pay for an improper removal action.

The Bureau removed a Special Agent from the federal service. After the Board upheld the removal, the agent appealed and the Federal Circuit remanded the case back to the Board, where the Board mitigated the agent’s removal to a 15-day suspension in its October 10, 2018 final decision. Following that final decision, the agent filed a motion to enforce the terms of the final decision, and the administrative judge issued a compliance initial decision on January 15, 2020. Both parties filed petitions for review, which the Board denied on May 20, 2024, and referred the enforcement petition to the Board’s Office of General Counsel pending the issuance of a final decision after the Bureau demonstrated compliance with the Board’s 2018 final decision.

In two subsequent orders, the Board summarized and clarified the remaining issues: the Bureau’s obligation to (1) pay the agent two-and-a-half years back pay with benefits and (2) to put the agent back to the status quo ante for a time period following the Board’s first final decision. The Bureau was ordered to file detailed evidence of its compliance.

On August 20, 2024, the Bureau filed a response to the Board but did not attempt to comply with the Board’s orders. Instead, the Bureau refused to comply with the Board’s order for back pay and a return to status quo ante based on a belief that the Board’s findings were “erroneous as a matter of law and will have a substantial, adverse impact on the administration of the civil service and matters of national security.”

In its show cause order, the Board, in an unusual manner, incredulously noted that there was no evidence or explanation for the Bureau’s claim that the back pay award would impact the administration of the civil service and rejected that claim outright. The Board noted that the Office of Personnel Management, not the Bureau, is charged with administering the civil service and that the Bureau does not have the authority to determine what does or does not impact the civil service.

The Bureau’s position regarding national security was based on the payment of back pay to an individual who no longer possesses a valid security clearance. The Board swiftly rejected this argument as well, noting that the agent possessed a proper security clearance for the time period that the Board ordered the Bureau to pay back pay, July 14, 2016 through December 17, 2018. The Board also noted that the Bureau had previously raised, and the Board had already rejected, this argument.

The Bureau also claimed that it was exploring the options available to it to challenge the Board’s May 20, 2024 Order. As the Board stated, there is no mechanism, except for one rare circumstance, for an agency to appeal a Board decision to any higher authority. The Board went on to note that even if the Bureau did have an appeal right, the May 20, 2024 order was not final and appealable. The Board also noted that if the Bureau were seeking some form of non-judicial review, it has not made clear what review that would be, or why in the three months since the Board issued the Order the Bureau was refusing to follow, the Bureau had not identified or pursued any such avenue of review.

The Bureau’s final argument was that even if it were to pay the agent back pay, he would have to set that money aside until the Bureau exhausted its appeal rights lest he have to repay a debt. The Board, bewildered by the Bureau’s sudden concern for the agent’s finances, rejected this argument as well based on the Bureau’s lack of appeal rights and lack of authority to refuse to comply with the Board’s lawful Order during the pendency of any appeal. The Board noted that an adverse debt or tax consequence to an agent does not bear on the Bureau’s responsibility to follow the Board’s orders.

The Board concluded by asserting its authority to impose sanctions against agency officials for noncompliance and ordered the Bureau to identify the responsible agency official, show cause why sanctions should not be imposed for the Bureau’s failure to comply with the Board’s orders, and for the Bureau representatives to submit sworn declarations that they had informed the relevant individuals at the Bureau regarding this Order.

Read the full case: Parkinson v. Department of Justice