What protection?

The odds of winning an appeal against your agency are not in your favor,

according to the most recent figures from the Merit Systems Protection Board.

Only about 18 percent of the cases considered by the MSPB were decided in

favor of the employee.

The MSPB's report, which is based on fiscal 1998 actions, shows that

about 3,600 of the approximately 7,000 cases filed with MSPB each year involve

appeals of adverse actions, removals, demotions or suspensions of more than

14 days.

For a variety of reasons, a large portion of those cases never gets

resolved on their merits. About 40 percent of them were dismissed either

because the fed appealing the adverse action had not complied with the time

limits for filing appeals or because by law the employee could not appeal

the adverse action to the MSPB.

Unfortunately, feds often file an appeal after the time limit, or they

fail to fully prosecute their appeal. In some instances, an action can't

be appealed directly to the MSPB — it must first be grieved within the agency.

Of the roughly 2,000 cases remaining, about 70 percent were settled

by the parties involved. That means the employee and the agency reached

an agreement. As a result, there were only 660 adverse action cases in fiscal

1998 in which decisions were issued by the MSPB that discussed and resolved

the dispute on the merits of the case.

In those 660 cases, the MSPB upheld the agency action without change

70 percent of the time. In nearly 12 percent of the cases, the administrative

judge affirmed the agency action but imposed a lesser punishment on the

appellant than the one selected by the agency. And in the remaining 18 percent

of cases that were decided on their merits (about 119 cases), an administrative

judge reversed the agency's action. Fiscal 1998 statistics were virtually

identical to those from fiscal 1997.

Typically, a case doesn't go all the way to the MSPB unless the fed

and the attorney feel they have a pretty good case. In addition, most attorneys

won't take these cases on a contingency basis, which means you have to shell

out money to an attorney if you want representation before the MSPB.

With this in mind, I'd expect federal employees to win a substantial

number of cases. But 18 percent? That's a joke. Fortunately, MSPB decisions

are often taken to an appeals court. I don't have the statistics on how

many cases are reversed by the court, but you've seen the details of many

such cases in this column.

It's ironic that the agency that's supposed to uphold merit systems

principles — the MSPB — usually sides with the agency. I thought the point

of having a "protection board" was to protect! Yeah, I guess it is — the

MSPB protects agency management!

—Zall is a retired federal employee who since 1987 has written the Bureaucratus

column for Federal Computer Week. He can be reached at [email protected]


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