Following is the summary of a recent report by MSPB on recent developments regarding federal employee appeal rights and the processing of cases arising from the sequestration furloughs.
The most significant external issues currently affecting MSPB’s mission include the over 32,400 furlough appeals filed in 2013 as a result of sequestration, changes to MSPB’s processes mandated by the Whistleblower Protection Enhancement Act of 2012 (WPEA), and the recently enacted Veterans Access, Choice, and Accountability Act of 2014 (P.L. 113-146).
By the end of FY 2014, approximately 34 percent of individual furlough appeals had been processed in MSPB’s regional and field offices. Of the individual furlough appeals processed, about 20 percent were dismissed, and of those not dismissed, less than 1 percent were settled—a much smaller portion than for regular adverse action appeals. Of the furlough initial appeals adjudicated on the merits, 99.5 percent of the initial decisions affirmed the agency furlough action. As MSPB continues to process these furlough appeals, it is committed to maintaining the processing of nonfurlough appeals (e.g., appeals related to removals, demotions, suspensions, whistleblowing, veterans hiring, and retirement, etc.). By the end of FY 2014, MSPB processed 70 percent of its nonfurlough initial appeals workload (existing cases at the start of the year plus those received during the year). At the same time, MSPB maintained the quality of initial decisions. Using its FY 2014 appropriations, MSPB increased its initial appeals permanent adjudicatory staff in FY 2014 by 18 full-time positions. Although these staff members have not yet reached full performance levels, they contributed to the overall adjudication of furlough and nonfurlough initial appeals.
The WPEA provided additional rights to whistleblowers and those who engage in other protected activity in the Federal Government. The law expanded the scope of protected disclosures, broadened MSPB’s whistleblower jurisdiction, expanded options for granting corrective action, and permitted review of MSPB decisions by multiple Federal Courts of Appeals. These changes have increased the number of whistleblower cases filed with MSPB and increased the complexity of MSPB’s processing of whistleblower cases. The changes also may lead to more and lengthier hearings in whistleblower cases and more addendum appeals (e.g., claims for compensatory and other damages or for attorney’s fees) for whistleblower cases. The WPEA also requires MSPB to track and report more detailed information about whistleblower cases in its performance reports. MSPB needs additional permanent resources to enable it to meet the requirements of the WPEA.
The recently enacted Veterans Access, Choice, and Accountability Act of 2014 changes the appeal rights of members of the Senior Executive Service (SES) at the Department of Veterans Affairs (VA). In particular, the Act stipulates that appeals by members of the SES employed by VA must be adjudicated by MSPB Administrative Judges (AJs) within 21 days, without possible subsequent review by the full MSPB Board. In our experience, to meet this timeline and ensure each party is afforded full and fair adjudication, the MSPB AJ assigned to the case, as well as a team of other MSPB legal staff members, have had to suspend processing of other adjudicatory work until a decision is issued in the VA case. This has effectively slowed the processing of other cases in the regional and field offices adjudicating the VA cases, and at HQ when HQ legal staff members are involved in the team supporting the adjudication of the VA case. An increase in adjudicatory staff in the regional and field offices and at HQ is necessary for MSPB to comply with the 21-day statutory requirement. In compliance with the new VA law, MSPB provided information about how it will implement these changes to Congress and this information is available at www.mspb.gov.
The extraordinary increase in our adjudication workload, the legislative changes included in the WPEA and VA legislation, and other current and anticipated Federal merit systems and workforce issues only adds to MSPB’s responsibility to perform its other statutory functions to conduct merit systems studies and review the rules, regulations, and significant actions of the Office of Personnel Management (OPM). To carry out these statutory functions, MSPB must ensure it has a stable, flexible, cloud-based capability to conduct surveys of the Federal workforce, including periodic Merit Principles Surveys, other studies surveys, and customer satisfaction surveys. In addition, MSPB must continue its efforts to shift to e-adjudication. These capabilities will improve MSPB’s effectiveness and efficiency, but will require an investment in resources. MSPB is committed to performing its functions to the best of its ability and to justifying and requesting the resources necessary to carry out its statutory responsibilities effectively and efficiently.
MSPB’s enacted FY 2014 appropriations supported filling 41 permanent positions including 35 existing adjudication positions and 5 non-adjudication positions. Eight of these 41 permanent positions were filled by existing MSPB employees enabling MSPB to use the expertise of its current workforce. However, these 8 internal transfers also created new vacancies. Thus, despite recent hiring, MSPB continues to operate below the resource level needed to execute its mission as effectively and efficiently as possible. Furthermore, 52 (23 percent) MSPB employees, including almost one third of our AJs who process initial appeals (both furlough and nonfurlough cases), are eligible to retire in the next two years. Although MSPB’s appropriations for FY 2015 will support its current work, given the possibility of sequestration in FY 2016 and beyond, MSPB is carefully considering the risks associated with hiring permanent employees on a position-by-position basis.
Despite resources issues, MSPB issued over 16,000 initial decisions and over 1,000 decisions at HQ while maintaining our decision quality at both levels. By the end of FY 2014, MSPB reduced its inventory of Petition for Review (PFR) cases pending at headquarters (HQ) by 34 percent compared to the end of FY 2013. MSPB also reduced the number of PFR cases pending at HQ for 300 days or more by 77 percent (not including furlough appeals that arrived in late FY 2014). This reduction in inventory was supported by an increase in the adjudicatory staff at HQ, although many of the new staff had not yet reached full performance level. The reduction of PFR inventory and increase in staff is important for two reasons. First, MSPB began receiving furlough PFRs in late FY 2014, receiving over 900 PFRs of furlough initial decisions by the end of the year. Second, when a new Board Member is nominated, confirmed, and sworn-in to replace Vice Chairman Anne Wagner, following her departure (no later than 28 February 2015), MSPB may experience a temporary slowing of PFR processing as the new Board member acclimates to the position.
Processing furlough and nonfurlough cases, complying with the WPEA and VA legislation, maintaining the PFR inventory, and performing its other statutory functions, coupled with budget uncertainty in FY 2016 and beyond, will likely significantly impact MSPB’s ability to meet performance targets. MSPB is committed to maintaining the quality of its adjudication decisions and performing its other statutory functions. Therefore, resolution of appeals at all levels and for all types of cases have and will likely take longer for the near future. To mitigate these likely delays in processing, MSPB hired 11 temporary employees in selected adjudication offices who are being used strategically to assist in processing initial appeals and maintain the PFR inventory.
MSPB is experiencing reductions in employee satisfaction and engagement (based on the Federal Employee Viewpoint Survey results) similar to the Governmentwide results recently reported by OPM. These reductions are exacerbated by the arrival of tens of thousands of furlough appeals resulting in the largest adjudication workload in MSPB’s history. The WPEA and new VA legislation have further complicated MSPB’s adjudication mission. A large majority of our employees are committed to MSPB’s mission and willing to do the extra work necessary to accomplish our mission. Furthermore, results of MSPB’s Internal Survey administered in September-October 2014 showed improvements over the previous year in communication and employee inclusion. Even so, MSPB will need sustained resources in order to meet its challenges.