Developments at the MSPB: On February 2, 2015, the Merit Systems Protection Board (MSPB) issued its annual performance report for FY 2014, combined with its performance plan for FY 2015-2016. The report discussed the current status of the MSPB’s caseload of furlough appeals, its overall case processing in FY 2014, and specific case statistics for whistleblower reprisal cases.
The MSPB was still working through its backlog of over 32,000 furlough appeals from the FY2013 sequestration-related furloughs. The MSPB reported having competed processing of approximately 34% of the appeals–of which less than 1% settled and 99.5% of the merits decisions upheld the furloughs. Reflecting these furlough appeals, total initial decisions issued by the MSPB almost tripled, although non-furlough initial decisions declined by roughly 6%.
In Appendix A to the report, the MSPB provided detailed statistics on whistleblower reprisal case, as required by Section 116 of the Whistleblower Protection Enhancement Act of 2012 (WPEA), which was previously analyzed in this blog. The MSPB’s case statistics show that, despite the WPEA’s expansion of the definition of ‘protected whistleblowing’, the MSPB is still dismissing the majority of whistleblower reprisal cases without deciding the merits of the whistleblower reprisal claims, with 53% of both Otherwise Appealable Action (OAA) appeals and Independent Right of Action (IRA) appeals dismissed without a merits decision after hearing. 23% of IRA and 16% of OAA appeals settled. Only 2.3% of IRA appeals and 1.4% of OAA appeal received a favorable decision on the merits–for a grand total of 7 cases with corrective action ordered out of 451 whistleblower reprisal appeals.