Assembly Line Injustice for Federal Whistleblowers

MSPB Plan to Speed up Appeal Process Magnifies Underlying Dysfunctions

Washington, DC — Plans by the federal civil service appeals board to speed up its proceedings may further reduce the quality of its decisions, according to comments filed today by Public Employees for Environmental Responsibility (PEER).  The group contends that the proposed Strategic Plan for the Merit Systems Protection Board (MSPB) stresses faster process but that its goal of ensuring fairness cannot be met without serious efforts at quality control of the work of its administrative judges.

The quality of the initial decisions by MSPB administrative judges will determine whether cases drag on in appeals for years.  A prime example is the restoration of U.S. Park Police Chief Teresa Chambers this January after more than seven years of litigation, which was needed to reverse a series of improper findings by the administrative judge.  PEER argues that putting even more time pressure on judges aggravates unfair, illegal and poor quality rulings, to the detriment of whistleblowers.

“Until the MSPB directly addresses the abysmal quality of its judge corps it will remain a due process desert,” stated PEER Executive Director Jeff Ruch, whose organization pursued the Chambers case.  “Although Chief Chambers had to endure a legal marathon, she was one of the few lucky ones who win.  Most whistleblowers never recover from the initial mangling at the hands of an MSPB judge.”

Currently, federal whistleblowers face less than a 2% chance of success through the MSPB process.  PEER contends that the MSPB Strategic Plan for 2012 through 2015 will only worsen these daunting odds by overlooking crucial aspects of its operations for ensuring fair outcomes, including  –

• MSPB judges who deny discovery requests from employees, even though information the agency alone possesses is often crucial to the employee’s defense.  Agencies know that MSPB will not order it to turn over records or make witnesses available and can stonewall without fear of consequences;
• MSPB judges can block pre-hearing appeal of their major rulings, thus keeping vital information out of the reviewable record;
• The evaluation criteria for MSPB judges give equal weight to proper punctuation and grammar as they do to appropriate consideration of relevant facts and application of the law.

In its Strategic Plan, the MSPB measures quality only by low rates of court reversals of its rulings, but in many instances improper findings of fact or exclusion of evidence are placed beyond the purview of court review.  The MSPB plan is out for public comment through tomorrow.

“Speeding up a flawed process does not improve it,” Ruch added.  “The MSPB must concentrate on the early stage of proceedings to make sure that important facts cannot be hidden under the table or excised from the record.”