Chances of Whistleblower Success Remain Slim
New Administration Plan Ignores Factors Eviscerating Whistleblower Protections
Washington, DC — A new plan by the federal civil service board to speed up its proceedings may make it even more difficult for whistleblowers to prevail in a forum where their chances of success are already miniscule, according to comments filed today by Public Employees for Environmental Responsibility (PEER). The group argues that a proposed Strategic Plan for the Merit Systems Protection Board (MSPB) imposes front-end deadlines that encourage assembly-line injustice followed by years-long appeals before even obvious legal defects can be corrected.
The MSPB is the principal route for federal civil servants to challenge terminations or other punitive actions related to their reports of waste, fraud and abuse. But the MSPB process is a daunting gauntlet for whistleblowers facing small yet diminishing prospects for relief as their cases wind through the system:
- MSPB administrative judge initial rulings reverse agency personnel actions in only 3.5% of the cases decided. In the main Washington, DC MSPB office, employees prevail less than 1% (0.6) of the time, according to the latest figures;
- Only 3% of employee appeals to the three-member, presidentially appointed Board succeed; and
- Whistleblowers win fewer than 2% of their appeals from the MSPB to the U.S. Court of Appeals for Federal Circuit.
“Civil servants have no rational basis for trusting the current system to ensure fairness or accountability,” stated PEER Executive Director Jeff Ruch, whose organization assists employees in redressing official malfeasance. “Keeping folks as far as possible away from the MSPB is often the best course of action.”
While Congress recently enacted a Whistleblower Protection Enhancement Act to help reverse these dismal numbers, many provisions have yet to be implemented. In addition, a recent court decision against employees in “noncritical sensitive” positions has already carved a gaping loophole in these protections.
The proposed new MSPB Strategic Plan for 2014-18 evaluates judges by the speed with which they process cases while still allowing appeals to languish for years after initial decisions. In comments filed today, PEER argues the MSPB approach prizes speed over quality and promotes perverse results by –
- Encouraging MSPB judges to truncate pre-hearing discovery and improperly limit presentations of witnesses and evidence. Mistakes made at these early stages can take years to remedy;
- Allowing MSPB judges to block pre-hearing appeal of their major rulings, thus keeping important information out of the reviewable record; and
- Failing to adopt concrete enforceable measures to quickly correct errors.
“The MSPB should concentrate on getting rulings right the first time,” Ruch added, noting that some of the most successful outcomes PEER has won in cases such as the restoration of U.S. Park Police Chief Teresa Chambers, have come only after years of litigation and reversals on appeal. “In most cases, the MSPB process simply re-victimizes whistleblowers who have already suffered career-ending injury.”
PEER does praise some aspects of the plan, such as the goal to decrease the time for deciding Petitions for Review to the full Board from an average of 245 days to 150 days.