MSPB Watch, through its founder and publisher, David Pardo, is pleased to offer the FY 2013 performance statistics for the Merit Systems Protection Board’s Administrative Judge Corps.
The 2013 statistics may be found here and in the posts below.
Here are this year’s highlights:
- The most useful take-away from this exercise is the average appellant success rate, on the merits, at the initial decision stage. Last year it was 3.5%. In 2011 it was 2.9%. This year it’s 3.6%. (Here’s an explainer as to the different ways to interpret this number.)
- That said, the methodology for initial decisions this year is a little different. The first two years I excluded the following categories: CSRA, FERS, USERRA, VEOA, Reduction in Force, Restoration to Duty, Suitability, and FERCCA benefit claims. This year I included USERRA, VEOA, and Suitability in my calculations and excluded Employment Practices and Reemployment Priority. The reason for this is to assess Administrative Judges’ performance on cases that directly relate to discrimination and violations of merit principles. Because the Board covers many discrete areas of personnel law, I wanted to group together similar areas with similar legal approaches and derive a “success rate” that reflects what the prevailing rate is like for an appellant who seeks to challenge an unjust agency action, versus one that is grounded in, say, mistakes in benefits calculation. I recognize that reasonable minds may differ, so please give me your feedback and I will reassess accordingly.
- I added new Petition for Review pages to reflect the Judges’ records on appeal before the full Board across all types of adjudications. These pages show how often the Board affirmed or reversed the Judges’ initial or addendum decisions, or reached the same result but had to modify the analysis. (Here no fields have been excluded as the focus is on the Judge’ legal reasoning/acumen and not so much on the types of cases before them.)
- The full Board granted PFRs at an average rate of 17.9% (reversing, remanding, or vacating the decision below). It also modified PFRs (granted or denied the ID but modified the analysis) at a rate of 22.9%. In other words, almost 1 out of every 4 appealed initial decisions had issues requiring the Board’s attention. (By contrast, typically 90-95% of final orders appealed to the Federal Circuit are affirmed. What accounts for the difference? A highly deferential standard of review at the appellate courts.)
- I created a dedicated page for Individual Right of Action statistics. In FY 2013, there were 346 IRA (whistleblower-related) initial decisions handed down. The overwhelming majority were dismissed (with and without prejudice), the latter likely due to the uncertain application of the Whistleblower Protection Enhancement Act. In FY 2013, 35 IRA cases settled, 17 were decided on the merits for the agency, and 2 were decided on the merits for the whistleblowers. (It’s important to note that IRAs are not the only instances where an appellant may bring a whistleblower reprisal defense. They may also be part of Adverse Action cases.)
- For the third year in a row, at a minimum, no Judge granted an appellant’s stay request. Not once.
- Finally, if you’re a whiz with Excel, please send me an email as I would like to find ways to automate or simplify this project. Also, if you see any errors or would like to contest the data, please let me know.
Publisher, MSPB Watch