Congress is Just Wrong About the MSPB

In the past few weeks, three chief administrative judges from the Merit Systems Protection Board overruled decisions by Veterans Affairs Department Deputy Secretary Sloan Gibson to demote three Senior Executive Service members to GS-15 positions. This is extraordinary to those of us who represent federal employees before the MSPB. House Veterans' Affairs Committee Chairman Jeff Miller, R-Fla., said the latest of these decisions was "yet another MSPB ruling that defies common sense." Miller was one of the chief architects of the Veterans Access, Choice, and Accountability Act of 2014, which among other goals, curtailed the rights of SES members to challenge disciplinary actions. "It is encouraging that VA Deputy Secretary Sloan Gibson is finally starting to realize what nearly every‎ objective observer concluded long ago: the MSPB coddles and protects misbehaving employees rather than facilitating fair and efficient discipline," Miller said. He could not be more wrong about where the system is broken and what needs to be done to fix it.

In the past 12 months, the judges who reversed Gibson’s decisions ruled in favor of employees a combined total of 5 times. Chief Administrative Judge William Boulden from the Philadelphia Regional Office decided 81 cases and ruled for the employee one time; Chief AJ Michele Szary Schroeder from the Chicago Regional Office decided 46 cases and ruled for the employee two times; and Chief AJ Arthur S. Joseph from the New York Field Office decided 107 cases and ruled for the employee two times.

This is the norm at the MSPB. In the board’s annual report for FY 2015, MSPB reported that of the approximately 25,000 cases decided that year, the AJs dismissed about 32 percent of the cases filed by employees, and for those that were not dismissed, the AJs ruled in favor of the employee 1 percent of the time. These are tough odds by any standard, and if this is “coddling” employees who commit misconduct, I must misunderstand the word.

The MSPB is also incredibly efficient, and is widely known to be so among those of us familiar with its operations. MSPB policy dictates that AJs issue decisions within 120 days of the appeal filing, which is often a relief for an employee who has been tangled up in an agency’s disciplinary process for months or even years. Compared to other federal administrative forums, this is our version of the “rocket docket.” Yet, with the 2014 Choice Act and with new legislation, the Senior Executive Service Accountability Act (H.R. 4358, approved by the House Committee on Government Oversight and Reform), which would extend the VA’s SES discipline and appeal process across all federal agencies, Congress is taking aim at MSPB versus actually getting to the problem.

The timeline of the recent case involving Diana Rubens shows that legislation cutting the MSPB’s time for adjudicating these cases down to 21 days is about as effective as a dieter taking the sprinkles off a three-scoop sundae. The timeline is as follows:

• In March 2015, that the Chairman and Ranking Member of the House Committee on Veterans’ Affairs and the Chairman and Ranking Member of the Senate Committee on Veterans’ Affairs requested the VA OIG investigate allegations of misconduct.

• 7 months later, on Sept. 28, the OIG issued a report entitled “Inappropriate Use of Position and Misuse of Relocation Program and Incentives.”

• On Oct. 29, Deputy Secretary Sloan Gibson issued Rubens a Pending Action Memorandum notifying her that he intended to transfer her from the SES to a GS-15 position for the charge of Failure to Exercise Sound Judgment.

• On Nov. 20, Deputy Secretary Gibson sustained the action against Rubens, who filed an appeal with the MSPB on Nov. 27.

• Because of its own procedural error, VA then rescinded the action, and the AJ dismissed the appeal on Dec. 3.

• The same day, Gibson re-proposed the action based on the same charge.

• After Rubens responded, on Jan. 6, 2016, Deputy Secretary Gibson again sustained the charge and the penalty.

• On Jan. 11, Rubens filed an appeal with the MSPB.

• On Feb. 1, exactly 21 days later, the AJ issued a decision.

In other words, the VA took approximately 10 months to investigate and act upon the misconduct, while the employee was given just days to respond to the charges and appeal, and the MSPB adjudicated and heard an entire appeal within 21 days. If there is a cog in the system, it does not appear to be the MSPB. The employees’ rights here could be cut no further. Meanwhile, there are no time limits on agencies to investigate misconduct or act upon it, which largely accounts for why the federal government spent $3 billion on salaries of employees on administrative leave from 2011 through 2013. This allowed employees to sit at home and receive pay while their agencies took months or years to investigate and act on possible misconduct. The notion that the employees are enjoying “time at the beach” could not be further from the truth—they are held captive by agencies’ inertia, prevented from getting a new job because of the cloud over their heads.

Moreover, the MSPB judges’ decisions in these three cases resulted from VA’s screw up, at best, or bad judgment, at worst. The notion that those at the top need to be held accountable for misconduct is hardly a radical concept. Yet Congress and the VA are feigning outrage.

Reform is certainly needed, but targeting the MSPB is not the way to achieve it.

Debra D’Agostino is a founding partner of The Federal Practice Group Worldwide Service. She has more than a decade of experience in employment law and has represented clients in matters before the EEOC, MSPB, the U.S. Court of Appeals for the Federal and D.C. Circuits and the U.S. Court of Federal Claims.