Debra Roth, partner at the law firm Shaw, Bransford, and Roth, told Federal News Radio, filing an appeal in the case is not one of those options.
“Interior, at this point actually, does not have a right to appeal. The Office of Personnel Management on behalf of the Department of Interior at this point would have to appeal because Teresa Chambers has won,” said Roth.
“Probably the most difficult thing for the agency to deal with” at this point, said Roth, is that there’s someone in the position now. “The law recognizes that the person who’s in the position…will have to be bumped. The department will have to find another position” for Salvatore Lauro.
“He has a right to a job that he’s qualified for at that grade level, but he doesn’t have a right to that job. She currently now trumps it as a matter of law. She has a right to that job,” Roth explained.
“What will be most interesting, I think, will be whether they’ll actually reinstate her to her former position because it is encumbered,” said Roth, or Interior will find a “like” position, which would be very difficult.
There might be a determination made by Interior that putting Chambers back in her job will cause an undue disruption in the workplace. “That would be the more likely angle that agencies use,” said Roth, “rather than seeing if they can get OPM, at this point, to appeal on their behalf to the Court of Appeals.”
It’s not like there’s a wealth of past practice to lean on, said Roth. These kinds of rulings, to restore someone to a position bumping someone else who has taken over, happens “very infrequently, as you can imagine,” said Roth, “because the reality is that most people lose at the MSPB and do not get their job back and the government moves on.”
Roth, ever the attorney, adds that Chambers can go back to the MSPB if Interior can’t prove the disruption of restoring her to the position is undue.