You have certain rights as a federal employee that are supposed to ensure you don’t fall prey to unfair discipline. One of these is the right to respond to any proposed discipline before it’s implemented. If you make a compelling argument, you might be able to reduce or avoid the proposed action. If that doesn’t work, you can challenge the action before the Merit Systems Protection Board (MSPB).
But how often does the MSPB side with the employees in these disputes? Not very often. According to Government Executive, federal employees won only 3% of all the cases brought before the MSPB in the past three years. The MSPB denies that this is a problem, stating that the numbers overlook several important facts.
What do the numbers overlook?
The MSPB is a quasi-judicial agency that rules on the disputes between federal agencies and their employees. Employees who get demoted, suspended or fired can appeal the decisions to the board, and the MSPB will hear the case. It checks whether the agency acted in accordance with all the laws and orders that govern it, making sure that employees don’t suffer because of arbitrary, excessive or politically motivated decisions.
It may not look like the MSPB is doing its job right if only 3% of all the employees who appeal to the MSPM win their cases. You wouldn’t be alone if you thought those numbers might suggest bias.
However, the MSPB says those numbers don’t tell the full story because:
- More than one-fifth of the disputes filed with the MSPB settle before they’re heard
- If you take out all the cases dismissed because of employees’ procedural errors, the win rate climbs to 18%
- The MSPB’s decisions are upheld in appeals more than 92% of the time
- There’s no standard for the percentage of cases that employees should win
This last point is particularly noteworthy. Just because 100 employees take their cases to the MSPB doesn’t mean that 50 of those employees should win. Or 30. Or any specific number. Each case is weighed according to its own merits, and the MSPB notes that employees lose many of their cases because they misinterpret the law, fail to provide material evidence or make similar mistakes.
Do you have a case?
The MSPB’s response to the low employee win rate suggests the agency is focused on making decisions based on the laws as they’re written. It’s not an idealistic agency looking to forge its own standard for what’s “fair.” Instead, it emphasizes deadlines, procedures and rules. It wants to see arguments that are rooted in the law and that are supported by solid evidence.