MSPB’s Statistics for 2015

By William Wiley

The Board published its annual summary of cases decided a couple of months ago. Normally, I dig into those win/loss tables with glee, separating the agencies who won most of their appeals from the pitiful losers who are wasting the government’s money. Yes, we are not happy here at FELTG unless we are pointing out where someone else made a mistake.

Unfortunately, in this report, there was no joy in Mudville. That’s because most of the agency-specific data mixed furlough appeals with other adverse actions such as removals. And as there were many, many furlough appeals, with agency success rates hovering in the 99% range, we really couldn’t tell which agencies were doing a good job of holding employee’s accountable for misconduct, and which ones were not. So no opportunity for us to write a snarky finger-pointing article about the Biggest Loser agencies for 2015. Poop.

However, the report did give us some across-the-board numbers of interest to those of us who care about federal employment law, numbers that exclude the anomaly of all those furlough appeals. When we use that filter to look primarily at removals, here’s what we find:

• 80% is a repeating statistic. In non-furlough removals, MSPB upheld the agency’s action in 80% of the cases in which a decision was issued. Similarly, the Board members agreed with their judges’ outcomes in 80% of appeals in which there was a petition for review filed. As you’ve read in this newspaper, FELTG takes the position that after 40 years of learning this law, the Board should be upholding agency removals close to 100% of the time. Federal agencies should not be making critical mistakes in one out of five dismissal actions.
• Half of 80% is 40%. And that’s the share of MSPB’s non-furlough case load devoted to reviewing removals (and a few long suspensions and demotions) for misconduct.
• About 10% of the Board’s caseload is devoted to protecting veterans rights (USERRA/VEOA) and another 10% of the caseload is devoted to protecting whistleblower rights (IRA). You readers who are purists recognize that I’m doing some generalization here, but I know that you’ll cut me some slack as the point here is relativeness, not specificity.
• 60% of all initial appeals settled, a statistic that is steady year in and year out. That’s why, among other reasons, here at FELTG we’ve decided to offer an open-enrollment seminar in the fall specifically to teach settlement options and skills. We may think of ourselves as litigators, but the numbers say that we actually are more likely to be deal-makers.

The above is relatively typical for MSPB, with no great surprises in the statistics. However, there are a few findings that are worth an extra degree of thought:

• 5% of the Board’s non-furlough caseload last year was probationary terminations. Even though the appeal rights of terminated probationers is severely limited, smart agencies will have documented for the record why the employee was released during probation. You don’t need much in the way of post-employment misconduct/performance procedures to terminate a probationer, but you still will want to have a legitimate reason documented in the file, both for the possible MSPB challenge as well as the inevitable EEO complaint.
• Only 2% of the Board’s decisions resulted in mitigation of the penalty. With all the whining many of us do about comparator employees and judges making management penalty decisions, you’d think that number would be higher. Well, it’s not.
• 3% of the caseload in 2015 was appeals of unacceptable performance removals under 5 USC 432. This lowly statistic has been relatively steady for maybe 20 years. With the frustration shown by Congress and certain members of the public directed toward “bad civil servants who can’t be fired,” one might think that this number should be higher, mightn’t one.

The big number for MSPB last year was the overall production rate. The Board issued over 28,000 decisions including all those furlough appeals. That’s a higher volume than produced by MSPB since the appeals of all those striking PATCO employees back in the early 80s. Once more, the good people who work at the Board hunkered down and dispensed justice both expediently and (usually) fairly. We may not agree with all their opinions and procedural quirks, but we have to admit: they know how to do what they’re being paid to do. Wiley@FELTG.com