MSPB FY 2009 Appeals Processing Results
Just in case anyone was interested -
The track record of your odds at getting an adverse agency decision reversed before the Merit Systems Protection Board. (MSPB).
The 2009 stats were release, and here is what they say:
Of the total of 7,998 decisions filed, only 174 resulted in the MSPB overturning the decision of the Agency.
The MSPB recently published its FY 2009 Annual
Report containing summaries of significant Board
decisions and detailed case processing results. The MSPB
issued 7,998 total decisions in FY 2009.
Significant Board decisions addressed issues such as MSPB appeals
procedures, alternative personnel systems, discrimination,
retirement, suitability, the Whistleblower Protection
Act, and veterans' rights under the Veterans
Employment Opportunities and Uniformed
Services Employment and Reemployment
Rights Acts.
MSPB's regional and field offices issued
almost 7,000 decisions with an average
processing time of 83 days. Of those, almost
56 percent (3,485 cases) were dismissed—
usually for lack of jurisdiction or timeliness.
MSPB's settlement and mediation programs provided an
opportunity for the parties to reach mutually acceptable
resolutions to their cases. As a result, almost 62 percent
of the remaining 2,780 appeals (1,720 cases) were settled
by the parties, meaning that MSPB did not rule on those
cases. Of the 1,060 appeals that were adjudicated on the
merits, 81 percent (859 cases) of the agencies' decisions
were affirmed, 16 percent (174 cases) were reversed and 2
percent (23 cases) were mitigated.
At headquarters, the Board issued 1,027 decisions
with an average processing time of 94 days or less. Of
the 850 decisions on Petition for Review (PFR) of Initial
Decisions issued by the Board, 79 percent (668 cases)
were denied, almost 10 percent (80 cases) were granted,
almost 6 percent (47 cases) were denied but reopened by
the Board, and less than 7 percent (55 cases)
were settled or dismissed. Of the 127 cases
that were reviewed by the Board, 49 percent
(62 cases) were remanded for reconsideration,
35 percent (44 cases) were affirmed, 7 percent
(9 cases) were reversed, and the remaining 9
percent of cases had other outcomes.
In addition, MSPB continues to issue legally supportable decisions, as evidenced
by the fact that the U.S. Court of Appeals for the Federal
Circuit left unchanged (dismissed or affirmed) over
90 percent of MSPB decisions that were appealed to
the Court. These results indicate that MSPB continues
to ensure that the Federal workforce has access to lots of
due process but very little justice.
Showing posts with label MSPB. Show all posts
Showing posts with label MSPB. Show all posts
Thursday, October 7, 2010
The Merit System Protection Board Never Finds Discrimination.
MSPB Continues to Refine Discrimination Analysis
It’s been a running joke, and for the employee’s bar not so much of a joke, that federal sector employment lawyers, HR folks, etc., really didn’t need to spend any time learning about the MSPB’s view of discrimination law for the simple reason that the Board never finds discrimination anyway. Could that be about to change? We’re still not seeing findings of discrimination from the MSPB, but suddenly it has an increased focused on the analysis of discrimination cases by its administrative judges. See Disparate Treatment by Any Other Name, Vol. I, Issue XV (2010).
The latest addition to the Board’s discrimination repetoire is Hodge v. Department of Homeland Security, 2010 MSPB 190 (September 15, 2010). In Hodge, the Board reversed the indefinite suspension of a Deportation Officer finding that an investigation into alleged misconduct was not sufficient reason to sustain the suspension where the agency did not rely on the crime provision of 5 USC 7513(b)(1). Having already reversed the suspension, the Board then went on to analyze the appellant’s claim of discrimination and the finding of the administrative judge that the appellant had failed to present a prima facie case of discrimination.
Because the case had gone to hearing, the Board found that the judge erred in analyzing whether the appellant had presented a prima facie case. Instead, the Board found that the judge should have simply proceeded to analyze whether the appellant had established that the agency’s reason for the indefinite suspension was pretextual. The Board cites Jackson v. U.S. Postal Service, 79 MSPR 46 (1998) for the proposition that when evidence has already been taken on a discrimination claim, it is error to analyze whether the appellant has presented a prima facie case and the analysis should proceed directly to the issue of pretext. The Board’s certainly correct about its own case law, but the reality is that the Board is simply following the dictates of the U.S. Supreme Court in U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983).
As Jackson duly notes, in Aikens the Supreme Court found that “[w]here the defendant has done everything required of him if the plaintiff had properly made our a prima facie case, whether the plaintiff really did so is no longer relevant[;] [t]he district court has before it all the evidence it needs to decide whether ‘the defendant intentionally discriminated against the plaintiff.’”
Of course, none of this helped the appellant in Hodge as the Board found there was insufficient evidence of pretext. The Board found:
[T]he appellant allegedly was involved in an incident with New Orleans police officers wherein she challenged their authority when they asked her to leave a car wash, resisted arrest, refused their attempts to handcuff her, and struck one of them in the face with her fist. IAF, Tab 4, Subtab 4(d) at 1. The misconduct of the three comparator employees consisted, respectively, of: being intoxicated and firing his weapon; having an affair with the wife of a man who was the subject of an investigation; and being the subject of domestic violence charges filed against him by the comparator’s wife. See Hearing Transcript at 120-21, 124. The conduct of the comparator employees clearly conflicts less directly with the duties of a law enforcement officer than the appellant’s direct and public confrontation with other law enforcement officers.
So, maybe we’re going to start seeing findings of discrimination out of the Board. On the other hand, one has to wonder. Is the conduct of the appellant in Hodge really less compatible with being a law enforcement than getting drunk and firing a weapon, having an affair with the spouse of someone who’s the subject of an investigation, and being charged with domestic violence? Hmm . . . perhaps it’s a good thing that the Board doesn’t get to hire law enforcement officers and only gets to decide on their discipline.
(By Ernest Hadley)
FELTG is a limited liability company EIN # 27-2532251, DUNS # 007097332
All content © 2010 by Federal Employment Law Training Group - Wellfleet, MA
It’s been a running joke, and for the employee’s bar not so much of a joke, that federal sector employment lawyers, HR folks, etc., really didn’t need to spend any time learning about the MSPB’s view of discrimination law for the simple reason that the Board never finds discrimination anyway. Could that be about to change? We’re still not seeing findings of discrimination from the MSPB, but suddenly it has an increased focused on the analysis of discrimination cases by its administrative judges. See Disparate Treatment by Any Other Name, Vol. I, Issue XV (2010).
The latest addition to the Board’s discrimination repetoire is Hodge v. Department of Homeland Security, 2010 MSPB 190 (September 15, 2010). In Hodge, the Board reversed the indefinite suspension of a Deportation Officer finding that an investigation into alleged misconduct was not sufficient reason to sustain the suspension where the agency did not rely on the crime provision of 5 USC 7513(b)(1). Having already reversed the suspension, the Board then went on to analyze the appellant’s claim of discrimination and the finding of the administrative judge that the appellant had failed to present a prima facie case of discrimination.
Because the case had gone to hearing, the Board found that the judge erred in analyzing whether the appellant had presented a prima facie case. Instead, the Board found that the judge should have simply proceeded to analyze whether the appellant had established that the agency’s reason for the indefinite suspension was pretextual. The Board cites Jackson v. U.S. Postal Service, 79 MSPR 46 (1998) for the proposition that when evidence has already been taken on a discrimination claim, it is error to analyze whether the appellant has presented a prima facie case and the analysis should proceed directly to the issue of pretext. The Board’s certainly correct about its own case law, but the reality is that the Board is simply following the dictates of the U.S. Supreme Court in U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983).
As Jackson duly notes, in Aikens the Supreme Court found that “[w]here the defendant has done everything required of him if the plaintiff had properly made our a prima facie case, whether the plaintiff really did so is no longer relevant[;] [t]he district court has before it all the evidence it needs to decide whether ‘the defendant intentionally discriminated against the plaintiff.’”
Of course, none of this helped the appellant in Hodge as the Board found there was insufficient evidence of pretext. The Board found:
[T]he appellant allegedly was involved in an incident with New Orleans police officers wherein she challenged their authority when they asked her to leave a car wash, resisted arrest, refused their attempts to handcuff her, and struck one of them in the face with her fist. IAF, Tab 4, Subtab 4(d) at 1. The misconduct of the three comparator employees consisted, respectively, of: being intoxicated and firing his weapon; having an affair with the wife of a man who was the subject of an investigation; and being the subject of domestic violence charges filed against him by the comparator’s wife. See Hearing Transcript at 120-21, 124. The conduct of the comparator employees clearly conflicts less directly with the duties of a law enforcement officer than the appellant’s direct and public confrontation with other law enforcement officers.
So, maybe we’re going to start seeing findings of discrimination out of the Board. On the other hand, one has to wonder. Is the conduct of the appellant in Hodge really less compatible with being a law enforcement than getting drunk and firing a weapon, having an affair with the spouse of someone who’s the subject of an investigation, and being charged with domestic violence? Hmm . . . perhaps it’s a good thing that the Board doesn’t get to hire law enforcement officers and only gets to decide on their discipline.
(By Ernest Hadley)
FELTG is a limited liability company EIN # 27-2532251, DUNS # 007097332
All content © 2010 by Federal Employment Law Training Group - Wellfleet, MA
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