Developments at the MSPB: On February 9, 2016, the Merit Systems Protection Board (MSPB) issued its annual performance report for FY 2015. The report discussed the current status of the MSPB’s caseload of furlough appeals, its overall case processing in FY 2015, and specific case statistics for whistleblower reprisal cases.
The MSPB reported that it processed 93% of the over 32,000 furlough appeals from the FY2013 sequestration-related furloughs. The MSPB reported having issued a record 25,400 trial-level decisions, up 55% from FY 2014, as well as trebling the decisions issued by MSPB headquarters staff. The MSPB also reported expanded resources for its Mediation Appeals Program (MAP), increasing the number of mediators available to conduct MAP mediations.
The hearing-level decisions included 5 VA SES decisions issued under the special adverse action statute which was previously analyzed in this blog. This VA SES adverse action statute is controversial, with the most recent criticism noting reversals issued in three such cases within a single month in early CY 2016. This criticism prompted the MSPB to issue a statement on its webpage on February 11, 2016, stating “In response to these rulings, some have suggested that MSPB is protecting poor performing employees at the Department of Veterans Affairs. These suggestions are baseless and unfair.”
In Appendix A to the report, the MSPB provided detailed statistics on whistleblower reprisal case, as required by Section 116 of the Whistleblower Protection Enhancement Act of 2012 (WPEA), which was previously analyzed in this blog. The MSPB’s case statistics show total whistleblower reprisal appeals up 29% over FY 2014 figures. FY 2015 saw an increase in both merits determinations and dismissals (but not corrective actions) in Otherwise Appealable Action (OAA) cases. Independent Right of Action (IRA) claims saw a 140% increase in the proportion of corrective actions ordered in cases where merits determinations were issued (24%, up from 10% in FY 2014), although this still only represents roughly 3.9% of total IRA appeals decided in FY 2015.