Developments at the MSPB: On May 23, 2017, the Merit Systems Protection Board (MSPB) issued its annual performance report for FY 2016. The report discussed the current status of the MSPB’s caseload of furlough appeals, its overall case processing in FY 2016, and specific case statistics for whistleblower reprisal cases.
The MSPB reported that it processed 99.5% of the over 32,000 furlough appeals from the FY 2013 sequestration-related furloughs. The MSPB used the report to cite its continuing concerns over proposed legislation to modify or expand truncated appeals rights modeled on the special removal statute applicable to Senior Executive Service employees at the Department of Veterans Affairs. As previously analyzed in this blog proved controversial, and were ultimately partially struck down by the courts. As the MSPB noted, it “had to allocate significant additional resources, including additional personnel, in order to adjudicate the cases within the 30-day time limit. This delayed the processing of other cases because our employees were reassigned from their case dockets to assist with the time-limited cases.” The report also noted the expansion of MSPB jurisdiction over certain adverse actions for National Guard Technicians, pursuant to a provision in the FY 2017 National Defense Authorization Act.
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 roughly 9-10% over FY 2015 figures, both in terms of Otherwise Appealable Action (OAA) cases and Independent Right of Action (IRA) cases.
New for this year, the MSPB separately broke out statistics for (b)(9) prohibited personnel practice claims (as previously discussed in this blog). The statistics show increasing frequency of (b)(9) claims, including in cases where both (b)(9) and traditional whistleblower reprisal under (b)(8) were both alleged.