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Merit Systems Protection Board

Agency overview
Formed	1978
Preceding agency	United States Civil Service Commission
Jurisdiction	Federal government of the United States
Headquarters	Washington, D.C.
Agency executive	Susan Tsui Grundmann, Chairman
Website	mspb.gov

The Merit Systems Protection Board (MSPB) is an independent quasi-judicial agency established in 1979 to protect federal merit systems against partisan political and other prohibited personnel practices and to ensure adequate protection for federal employees against abuses by agency management.

When an employee of most Executive Branch agencies is separated from his or her position, or suspended for more than 14 work days, the employee can request that an employee of MSPB conduct a hearing into the matter by submitting an appeal, generally within 30 days. In that hearing, the agency will have to prove that the action was warranted and the employee will have the opportunity to present evidence that it was not. A decision of MSPB is binding unless set aside on appeal to federal court. Along with the Office of Personnel Management and the Federal Labor Relations Authority, the MSPB is a successor agency of the United States Civil Service Commission, which was abolished in 1979.

Background

Settlements are extremely rare less then 1% (see MSPB judicial statistics) and only with the luxury of being able to obtain an expensive high powered influential law firm. Many of the wrongfully fired are whistle blowers who are then subjected to the quasi judicial MSPB composed of political appointed judges who as Obama appointed Judge Jeremiah Cassidy stated on the record, "don't you know when you work for the government you are supposed to do as you are told and not question." This seriously flawed Obama appointed MSPB judge rarely rules in favor of the employee, less then 3% of the time. When compared with similar cases in Federal, District, Circuit or other courts it's about 50%. When will OIG and MSPB honestly perform the duties of their jobs.

The largest settlement since the inception of MSPB in 1979 was for $820,000 in Robert W. Whitmore v. Department of Labor. The Board approved the settlement on June 5, 2013. Whitmore was fired after giving Congressional testimony that Occupational Safety and Health Administration's workplace injury and illness program was deliberately ineffective. Whitmore, who had worked for the Bureau of Labor Statistics for 37 years, was represented by noted DC plaintiff's employment lawyer Bob Seldon.

The largest settlement before Whitmore was for $755,000 to former Securities and Exchange Commission lawyer, Gary J. Aguirre, for his wrongful termination in 2005. The SEC settled Aguirre's claim on June 29, 2009.

In January 2011, the Board ordered the U.S. Park Police to reinstate its former Chief, Teresa Chambers, who had been fired in July 2004 for speaking to the Washington Post about the consequences of Park Police staff shortages. The Board also found her entitled to retroactive pay dating back to July 2004 and her legal costs.

Generally, appeals are heard by the United States Court of Appeals for the Federal Circuit. However, appeals involving claims of discrimination are heard in federal district court.

The Board carries out its statutory mission by:

• Adjudicating employee appeals of personnel actions over which the Board has jurisdiction, such as removals, suspensions, furloughs, and demotions
• Adjudicating appeals of administrative decisions affecting an individual's rights or benefits under the Civil Service Retirement System or the Federal Employees' Retirement System
• Adjudicating employee complaints filed under the Whistleblower Protection Act, the Uniformed Services Employment and Reemployment Rights Act, and the Veterans Employment Opportunities Act
• Adjudicating cases brought by the Special Counsel, principally complaints of prohibited personnel practices and Hatch Act violations;
• Adjudicating requests to review regulations of the Office of Personnel Management that are alleged to require or result in the commission of a prohibited personnel practice-or reviewing such regulations on the Board's own motion
• Ordering compliance with final Board orders where appropriate
• Conducting studies of the Federal civil service and other merit systems in the Executive Branch to determine whether they are free from prohibited personnel practices

Merit Principles survey

Under Susan "Chop" Tsui Grundmann no survey of federal employees or report regarding judicial statistics has been done since 2010 to the detriment of fairness and justice regarding MSPB cases.

The Merit Systems Protection Board surveyed federal employees in 1992 and 2010. The response rate was 64 and 58 percent, netting approximately 13,000 and 42,000 responses in the 1992 and 2010 surveys, respectively. One question asked, "During the last 12 months, did you personally observe or obtain direct evidence of one or more illegal or wasteful activities involving your agency?” In 1992, 17.7 percent of respondents answered yes. In 2010, only 11.1 percent of respondents answered yes.

"In 1992, 53 percent of respondents who made a disclosure reported that they were identified as the source. In 2010, 43 percent reported that they were identified." While the trend is in the right direction, "In both 1992 and 2010, approximately one-third of the individuals who felt they had been identified as a source of a report of wrongdoing also perceived either threats or acts of reprisal, or both". "To qualify for protection under the Whistleblower Protection Act, the individual must be disclosing a violation of a law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety." Only certain official personnel actions are prohibited; other forms of retaliation are still legal.

Criticism

There are complaints that the MSPB has gone far beyond protecting civil servants from unjustified disciplinary action. Rather, the MSPB now makes it nearly impossible to fire poor performers or problematic employees, even when they have committed egregious violations that would result in immediate termination in the private sector. According to the CEO of the Partnership for Public Service, "There is no question that taxpayers are losing hundreds of millions of dollars, in a conservative estimate. They are losing more than that because they are losing the ability to get the very best out of government."

See also

• Title 5 of the Code of Federal Regulations
• Douglas Factors

Notes

1. http://www.mspblawblog.com/2013/08/completing-and-submitting-an-mspb-appeal.html
2. ^ Gretchen Morgenson, "SEC Settles With a Former Lawyer" The New York Times (June 29, 2010). Retrieved March 1, 2011
3. O'Keefe, Ed. "Fired Park Police chief Teresa Chambers ordered reinstated". Washington Post (January 11, 2011). Retrieved March 11, 2011
4. 5 U.S.C. § 7703(b)(2)
5. Grundmann (2011)
6. Grundmann (2011, p. 18/54)
7. Grundmann (2011, p. 23/54)
8. Grundmann (2011, p. 13/54)
9. Grundmann (2011, p. 18/54)
10. Grundmann (2011, p. 23/54)
11. "Red tape keeps some bad gov't workers from being fired". CBS News. 2 March 2015.
12. "CBS: Govt Inability to Fire Bad Employees Like EPA's Porn-Watcher Costing Taxpayers Millions" on YouTube

References

Grundmann, Susan Tsui (November 2011), Blowing The Whistle: Barriers to Federal Employees Making Disclosures, U.S. Merit Systems Protection Board, retrieved August 24, 2013

External links

• United States Merit Systems Protection Board
• United States Merit Systems Protection Board in the Federal Register
• MSPB Case Statistics FY 2007-2010 and Annual Reports FY 1979-2010 (privately owned website)

• United States Merit Systems Protection Board