By Deborah Hopkins, March 28, 2022
Last month, the MSPB issued its annual report from FY 2021, and just like the reports from the several years preceding, there were ZERO decisions on Petitions for Review, because there were ZERO members on the MSPB.
Well, that’s all changed because as of March 4, 2022, we now have a quorum. That’s right, after 1,882 days without a quorum, the Senate confirmed Vice Chair and Acting Chair Raymond Limon, and Member Tristan Leavitt. As a result, the backlog of 3,600-plus cases is starting to move. That means the FY 2022 report will contain something other than zeroes at the Board level for the first time since FY 2017.
In the years without a quorum, the Board was still operating on the lower levels, and I’ve highlighted some statistics in the 2021 report you might also find interesting:
- 4,649: The number of appeals received (of those, 1,881 were adverse actions; 173 were performance-based actions; and 453 were Individual Right of Action).
- 3,082: The number of appeals dismissed
- 1,567: The number of appeals not dismissed
- 724: The number of appeals settled (a 46% settlement rate)
- 843: The number of appeals adjudicated on the merits
Of those appeals that were adjudicated on the merits:
- AJs upheld agency actions 80 percent of the time
- AJs overturned agency actions, or ordered corrective action, 16 percent of the time
- AJs mitigated agency actions 2 percent of the time
Allow us to do the important math for you: Out of 4,649 appeals filed, only 157 of those actions were overturned or mitigated, which equals 3.38 percent. So, agency actions stood as taken in 96.62 percent of cases last year.
The agencies that had the top 5 highest number of appeals, unsurprising given the size of these agencies:
- Department of Veterans Affairs
- Department of the Army
- United States Postal Service
- Department of the Navy
- Department of Homeland Security
Because of the continued lack of quorum, MSPB was unable to issue any formal reports to the President and Congress in FY 2021. But according to the report, “MSPB published three editions of its [Issues of Merit] newsletter, which included articles on various topics such as pay equity, recruitment and hiring, telework, online training, disability retirement, performance management, and supportive work environments.” MSPB also published five research briefs which are linked in the report.
With all that’s happening, and more about to happen, it’s a perfect time to register for the webinar Getting Back on Board: An MSPB Case Law Update, planned for April 20, where we’ll be covering the first cases coming out of the brand new MSPB. Finally! Hopkins@FELTG.com