How Are Agencies Doing Before MSPB?

By on October 26, 2013 in Current Events with 8 Comments

Let me start with some praise for the Merit System Protection Board’s newsletter Issues of Merit.  Published periodically, the newsletter includes articles on human resources management, advice for supervisors and guidance on merit principles such as the September issue’s write up on avoiding nepotism.   James Tsugawa writes a Director’s perspective for each issue as well.  Keep up the good work (and have a talk with OPM, will ya?).

So what’s that got to do with cases?  In June of this year and in May of 2012, Issues of Merit published statistics on the Board’s adjudication activity for the prior year.  The figures are contained in two charts.  One deals with the results of initial appeals to the Administrative Judges and the other with cases that go before the full Board.  Below is the information the Board listed.

Agency Performance before Administrative Judges 

Activity 2011 2012
Initial Appeals Processed 6,543 5,881
Disposition
Not Dismissed 2,634 (40%) 2340 (40%)
Dismissed 3,909 (60%) 3541 (60%)
Adjudication
Decided 1,005 (38%) 895 (38%)
Settled 1,629 (62%) 1,445 (62%)
Decision
Affirmed 745 (74%) 657 (73%)
Reversed 223 (22%) 199 (22%)
Mitigated 24 (3%) 32 (4%)
Other 13 (1%) 7 (1%)

In 2011, of the 6,543 initial appeal cases processed, Agencies were reversed or mitigated in 247.  In other words, the rest were dismissed, reversed or settled.  If settled, presumably the Agency either got what it wanted or was willing to live with the outcome.  My reading is that 247 out of 6543 is about 3.8% indicating an acceptable result in about 96.2% of the cases before Administrative Judges.

In 2012 of the 5,881 initial appeal cases processed, Agencies were reversed or mitigated in 231.  In other words, the rest were dismissed, reversed or settled.  If settled, presumably the Agency either got what it wanted or was willing to live with the outcome.  My reading is that 231 out of 5881 is about 3.9% indicating an acceptable result in about 96.1% of the cases before Administrative Judges.  In other words, virtually identical results for each year.

Overall, the statistics are remarkably consistent.  In both years, the identical percentage of cases before Judges were adjudicated, dismissed and settled.  Roughly the same results occurred in decisions with 25 and 26% of the cases actually heard resulting in mitigation or reversal.  What the numbers don’t tell us is why the cases were reversed or mitigated and whether there is a pattern for the reversals and mitigations.  I have heard from a number of folks that the Board Judges are chagrined by the cases coming before them in which the Agency failed to prove its case.  Getting all the way to a hearing without substantial proof is likely a system failure at some point in the process.  It would be interesting to know if there is a pattern among Agencies accounting for almost 500 reversals and mitigations over a two year period.

Since I said some nice things about Issues of Merit (above), maybe the Board’s Policy and Evaluation folks could take a look at these cases and tell practitioners at least what the indicators were that lead to these results, if not which Agencies didn’t cut it(again if there’s a discernible pattern.)  96+% is a pretty good quality rating and Agency Employee Relations Advisors and Attorney Advocates should get high praise for their work.

Agency Performance Before the Full Board 

Petitions for Review (PFRs) Processed 849 833
Disposition
Granted 145 (17%) 196 (24%)
Settled or Dismissed 76 (9%) 70 (8%)
Denied and Reopened* 43 (5%) 75 (9%)
Denied and Not Reopened 585 (69%) 492 (59%)
Decision
Affirmed 22 (15%) 22 (11%)
Reversed 25 (17%) 24 (12%)
Remanded 89 (62%) 138 (71%)
Other 9 (6%) 12 (6%)
*Disposition of these cases is discussed in the 2011 annual report

In 2011, the full Board granted 145 out of 849 Petitions for Review filed. Of those, it reversed or remanded 114 (79%).  That means the Agency prevailed or settled in approximately 76%. In 2012, the full Board granted 196 out of 833 Petitions for Review filed. Of those, it reversed or remanded 162 (79%).  That means the Agency prevailed or settled in approximately 80%. Unfortunately, that doesn’t tell the whole story.  Of the 145 the Board heard in 2011, it reversed or remanded 114 or 79%.  In 2012, it heard 196 and reversed or remanded 83%.  Does this appear as skewed to you as it does to me?

We should all be aware, in fairness, that issues get more complex as case progress through the system.  The easy ones should shake out early.  The Board’s past success was in giving Agencies and advocates a clear idea of what it expected.  This was often reflected in the degree to which the AJs decisions were upheld as consistent with past Board rulings.  This data begs for a study on whether, as this writer believes, this particular Board has departed from predecessors and why.

If an Agency prevails in a case, it’s an indicator that it has solid policies in place, follows the law, trains managers well and is listening to the third parties responsible for making sure merit is maintained in necessary actions.  Between 1979 and the advent of the current Board, most would say the MSPB laid down scrupulously consistent guidance for Agencies to follow.  I’m not so sure about these appointees and am really uncertain of their objectives.

As always, if you find an opinion in the above, it’s my responsibility alone.

BTW, If you’re contract is about to or has expired and you’re looking for bargaining preparation assistance or training, let me know with an email to Robert.Gilson@rgsinc.com.  We’ve assembled a team of very experienced people to help you with this vital effort, so drop me a line and I’ll catch you up on who we’ve helped or are currently involved with and what we can do for you.

For my furloughed friends out there, please remember that this too shall pass.  If it’s any consolation (and taking no sides):  Mark Twain said, “Suppose you were an idiot, and suppose you were a member of Congress; but I repeat myself” and Barack Obama said: “We want everybody to act like adults, quit playing games, realize that it’s not just my way or the highway.

© 2016 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.

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About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.

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