The Merit Systems Protection Board (MSPB) decides federal employee cases involving issues such as terminations, demotions, and claims of whistleblower retaliation. If a case gets as far as a precedential decision by MSPB, it often is a close enough call that a reasonable Board member could decide it in favor of either management or the employee. A sampling of recent decisions by MSPB reveals the impact of President Obama’s appointments to the Board. Regardless of their political parties, all three board members are ones whom the Obama administration thought suitable for appointment (after Senate approval) to decide such cases.
Looking at the case report for July 20, 2012 as an example (a non-scientific sampling), we see the court vacating five decisions and sending them back for further analysis by the original judges. All five originally had been decided against the employee and three of those involved whistleblower retaliation claims. A sixth decision outright reversed an indefinite suspension.
Lest you think that the Board has gone to an extreme in favor of employees rights, there are still many decisions in which an agency action is upheld. As well, the July 20 case report lists seven decisions by the Court of Appeals for the Federal Circuit–the court you or the agency goes to if unhappy with a decision of the Board. That court has a mix of federal judges appointed by a variety of presidents, Republican and Democrat. In these most recent decisions, the Federal Circuit upheld the Board’s decision every single time. In other words, they found no clear error in the Board’s reasoning.
In short, just as with the Supreme Court, which President appoints the person making the decision many times may predict which way the appointee will go in a close case. The fact that the appointees in both situations surprise us sometimes is a sign the system is working–the Board members (or justices) are retaining their independence.
Those of you who think federal employees are coddled may want to consider voting for someone other than Obama. On the other hand, those who think–for example–that we need to more carefully protect the rights of federal employee whistleblowers, will want to consider re-electing Obama.