Following is an article in a recent MSPB publication making the case that data on how many federal employees win formal appeals there can paint a misleading picture of the appeals process.
On February 28, 2019, the House Government Operations Subcommittee held the hearing Effects of Vacancies at the Merit Systems Protection Board. A witness stated that the low win rate for individuals who assert whistleblower retaliation claims before MSPB Administrative Judges (AJs) demonstrates AJs’ “hostil[ity]” toward whistleblowers.
A second witness noted that agencies win before MSPB “the great majority of the time.” Later, a member of Congress asked how often MSPB “overturn[s]” personnel actions. Should we attach much significance to the rate at which individuals prevail at MSPB? Probably not.
In the 5-year period that ended September 30, 2018, MSPB AJs closed over 26,000 cases, not including 33,000 sequestration furlough appeals. In about 3 percent of those 26,000 cases, individuals received some form of AJ-ordered relief (e.g., cancellation or mitigation of a personnel action; back pay; retirement benefits). Almost 5,000 of those cases were decided on the merits—that is, cases that were filed on time, within MSPB’s jurisdiction, and not resolved by settlement. Of those 5,000 cases, the annual rate at which individuals received some sort of relief varied between 16 and 22 percent, with the 5-year average being 18.2 percent.
If one were to recommend that MSPB’s effectiveness or neutrality be based on figures such as these, one should also be prepared to identify what the “right” individual success rate should be. For instance, statistics published by the Equal Employment Opportunity Commission (EEOC) show that individuals prevailed in 2.7 percent of all employment discrimination complaints lodged against Federal agencies that were closed in FY 2015.1 This win rate is virtually identical to the win rate for individuals in all cases closed by MSPB AJs during the same period. Does that make this “the right” number? Maybe one could claim that the individual win rate at EEOC is also too low. Rather than citing win rates as if they mean something in a vacuum, we should instead be able to point to specific decisions and explain how they were based on a misinterpretation of the law, an incorrect weighing of the evidence, or some other error. It is unconvincing to suggest that some decisions in favor of agencies must be wrong simply because there are a lot of them.
There are additional reasons why citing win rates without context is unhelpful. For the 5-year period ending September 30, 2018, 22 percent of all cases closed by MSPB AJs were resolved by settlement. If agencies had refused to settle cases that they believed they were likely to lose, then the individual win rate would have been higher. It hardly seems an improvement, however, to have more litigation and fewer negotiated resolutions. Likewise, the individual win rate at MSPB would go up if agencies took more unjustified personnel actions, but here too it would be perverse to wish for agencies to act recklessly. One would hope that a neutral adjudicator would not let consciousness of individual win rates affect day-to-day decisionmaking. Imagine overhearing a basketball referee remark that he intends to call more fouls on the home team in the second half because he called just a small number of fouls on that team in the first half.
You would rightly wonder whether the referee understood his responsibilities. Similarly, in deciding a particular case it would be inappropriate for an AJ to consider how often he ruled for one party or the other in past unrelated cases.
This is not to say that MSPB is or should be unaccountable. MSPB’s published annual reports in the 5-year period ending September 30, 2018 show that MSPB’s reviewing court affirmed between 92 and 96 percent of the MSPB decisions appealed to it. This is a good indication that MSPB is getting it right pretty consistently. Moreover, when policymakers have come to believe that MSPB is misinterpreting or misapplying the law, they have amended those laws, as they chose to do with the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017.
In the end, the real value of a dispute-resolution body such as MSPB lies in the fact that it is available. If the actions of Federal agencies toward employees were not subject to review, one could reasonably expect agencies to mistreat their employees more often than they do. Where there is review, however, the win rate of employees who choose to appeal personnel actions and do not negotiate settlements means little in the abstract.