MSPB inundated with furlough, VA SES cases from 2014

By Jory Heckman
Federal News Radio

Between 30,000 furloughed feds filing appeals and the high-profile firings of Senior Executive Service members at the Veterans Affairs Department, the Merit Systems Protection Board’s 2014 annual report card looks back on a busy year.

Susan Tsui Grundmann
Susan Tsui Grundmann, chairwoman of the Merit Systems Protection Board, told the Federal Drive with Tom Temin how the MSPB has been working to clear its backlog of cases.

Regional and field offices handled more than 16,000 cases in 2014, Grundmann said, compared to a yearly average of 5,000 to 6,000 cases. Of those cases, 11,000 were furlough appeals. At its headquarters, MSPB handled more than 1,000 cases, compared to its typical caseload of 700.

“And quantity does not mean we lack quality, because our affirmance rate by our reviewing court, the federal circuit, is at a three-year high, currently at 96 percent,” Grundmann said.

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She added that the average processing time pre-furlough was 93 days at regional and field offices. “And that’s because the furlough cases come in and they blend with the existing cases — whisteblowing cases, veterans claim cases, removals, suspensions. Those cases are still being processed as they normally would. The furlough cases are just folding in,” Grundmann said.

Looking back, Grundmann questioned the value of the large-scale furloughs as a cost-cutting strategy.

“In terms of the furloughs themselves, I think you can see the frustrations on both sides. While money may have been saved, as a result of the sequestration, still resources and time was spent by employees and the agency to defend these types of cases. So I’m not sure how many winners there were in the end,” Grundmann said.

MSPB also weighed in on several high-profile firings of Senior Executive Service members in the Veterans Affairs Department, including the removal of former Phoenix Veterans Affairs Health Care Director Sharon Helman. An administrative judge upheld the firing in December on grounds that she accepted gifts from lobbyists, including tickets for airline flights and a Beyoncé concert. That judge also determined that insufficient evidence existed to link Helman to delayed patient wait times at the VA hospital.

Under a new law signed by President Barack Obama, the MSPB is required to rule on SES cases within 21 days. If a judgment can’t be made within the 21-day window, the department wins and the employee loses by default. Grundmann said the time crunch isn’t conducive for these complex cases.

“What we’ve seen is that this faster pace really favors no one. In terms of the appellant, he or she has to find a representative and get that person up to speed in a very short amount of time. And the agency also has to get up to speed in a short amount of time. There’s a lot of discovery,” Grundmann said referring to the pre-trial phase where both parties can obtain evidence from each other. “If you look at the Helman case, the agency didn’t answer a lot of discovery, and ultimately the big charge — the infamous charge of the patient wait lists — didn’t stick. But something else did. So they weren’t able to prove that charge. It’s a complicated case, 21 days is not going to be enough.”

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