New MSPB case statistics have implications for pending whistleblower legislation.

Things just keep getting worse for federal employees and whistleblowers who challenge adverse actions taken by federal employers. Charlotte Yee recently posted on the Government Accountability Is A Citizen’s Responsibility blog the official Merit Systems Protection Board (MSPB) Fiscal Year 2008 (Oct. 2007 – Sept. 2008) statistics for all non-benefit cases decided by MSPB administrative judges. The results are, once again, astoundingly biased in favor of the federal employers.

The MSPB judges ruled in favor of employees a total of 1.7% of the time out of a total caseload of 4,698 cases nationwide.

In other words, if you are a federal employee and have a whistleblower reprisal claim or otherwise challenge serious discipline or a termination before the MSPB you have more than a 97% chance of losing your case (even after factoring in the cases that settle). 

Even though the MSPB continues to utterly fail to be a fair arbiter of federal employee cases, the Senate is proposing to give the MSPB more power to decide cases in favor of federal employers. In S. 372, the so-called Whistleblower Protection Enhancement Act, the Senate is giving the MSPB new summary judgment procedures (only in whistleblower cases). This will make it even more difficult for employees to prevail in whistleblower cases because unlike cases filed in federal court, the MSPB has very limited discovery tools available.   Summary judgment is a procedure that is available in court cases, under the Federal Rules of Civil Procedure. However, those federal rules for court cases also provided for broad discovery. Not so at the MSPB. If enacted, the new MSPB summary judgment procedures will result in a more efficient way for the MSPB to dispose of cases and rule against federal employees without holding a hearing. 

If that is not bad enough, the Senate has proposed in S. 372 a very limited right to seek a jury trial in federal court in only some whistleblower cases (e.g., where there is a suspension of 14 days or more or a removal) if the employee files a request with the MSPB at an early stage of the case. However, the federal employer will be permitted to file a motion under Federal Rule Civil Procedure Rule 12(d), forcing the employee to survive summary judgment before the MSPB can permit a case to go to federal court. At that stage, the employee will have the benefit of no discovery, or may be forced to litigate the merits of a case on summary judgment, before the MSPB rules, in its discretion, whether or not the employee should be permitted to take the case to federal court and seek a jury. The same MSPB judges who rule currently rule for employees 1.7% of the time will be making these decisions under this convoluted procedure.

Finally, the MSPB statistics are revealing with respect to how the Senate proposes to “enhance” the whistleblower rights of employees who work for intelligence agencies and the FBI. In S. 372, employees who work in the field of national security will get no court access. Instead, they will be provided an administrative procedure that is even worse than the MSPB. In S. 372 the Senate proposes that FBI, CIA, NSA and other intelligence agencies will assign their own judges to decide the cases. Once the very agency that fired or disciplined the employee for whistleblowing makes the ruling as to whether there was retaliation the employee can appeal to a new Board that must defer to the agency’s decision. It is hard to imagine how anyone could devise a system that is worse than the current MSPB system to decide whistleblower cases, but that is precisely what the Senate and the Obama administration are proposing in S. 372.

The proposals in S. 372 are doomed to fail because they will further bias the system in favor of the employer. We already know the track record of the MSPB with over 30 years of statistics where employees now win only 1.7% of the time. Giving the MSPB more power, without providing employees full access to court, will not make much difference in these statistics. As for the FBI and intelligence agency employees, creating an entirely new administrative system that is even more biased in favor of the employer than the MSPB, without any court access for trials, is an insult to the brave employees who protect our national security. Accused terrorists have more rights in court than any employee of the FBI or intelligence agency blowing the whistle on illegal conduct, fraud or waste and abuse.

There is a solution to this problem. The House of Representatives with broad bi-partisan support has twice passed a bill that, while not perfect, addresses most of these problems in federal employee whistleblower cases in a constructive way based on other laws, such as Title VII of the Civil Rights Act, that provide court access for federal employees in addition to administrative remedies. The House bill (HR 1507), introduced by Rep. Chris Van Hollen (D-Md) and Rep. Todd Platts (R-Pa), provides important reforms to the MSPB and permits full court access for employees to obtain jury trials in federal court. 

Tell your Senator to strengthen the Senate bill by removing the poison pill provisions of S. 372 that are an impediment to real reform before it passes the Senate.

  • Mike

    This is exactly why my attorney at Passman & Kaplan decided after discovery to seek a settlement with DHS. He believed that if the system was fair we’d win. However, as things stand and with the make-up of the MSPB and the EEOC complainants rarely prevail in “performance-based” cases. This is why agencies are resorting to using performance as a means of terminating malcontents. Judges won’t second-guess managements’ determination as to who is or is not performing successfully. So management is using the performance appraisal system as a weapon to rid the agency of trouble-makers.

    This is why I believe civil rights groups and the media should turn its firing power on these bias and lazy administrative judges — publicly name them and detail their bias decisions. Many have aspirations to be appointed to higher office and to federal judgeships. Exposing their biases and prejudices could be career limiting and rightfully so.