Management

MSPB nearing full elimination of 5-year appeals backlog

By the end of fiscal 2025, MSPB expects to fully eliminate the remaining federal employee appeals cases that built up during the five-year lack of quorum.

Drew Friedman@dfriedmanWFED

October 3, 2024 5:14 pm

3 min read

The Merit Systems Protection Board has brought a historic backlog of federal employee adverse action cases down to nearly zero.

By the end of September, MSPB reported that it had issued decisions on 94% of the thousands of federal employee appeal cases that had been sitting stagnant during the record five-year period without a quorum. Between 2017 and 2022, vacant board seats left the agency unable to issue case decisions, and thousands of federal employees without answers on their pending appeals.

As an agency, MSPB aims to protect federal employees against prohibited personnel practices, like whistleblower retaliation, by adjudicating adverse action appeals from employees. But during more than five years without a quorum — which requires at least two of the three board seats to be occupied — MSPB amassed nearly 3,800 pending cases from federal employees looking to appeal a decision on an adverse action.

The process of shrinking the significant case backlog has so far taken about 2.5 years for the current MSPB members. During fiscal 2025, the board expects to fully eliminate the remaining pending cases that built up during the lack of quorum. The agency will likely take the “inherited inventory” down to zero by the end of December, according to an MSPB spokesperson.

Image of MSPB backlog over time — Size of Merit Systems Protection Board backlog of federal employee adverse action appeals, 2022-2024. Graph created by Federal News Network using data from MSPB.

After the five-year span without a quorum, the Senate confirmed Raymond Limon and Tristan Leavitt as MSPB members in March 2022, letting the agency once again begin deciding cases. Just a few months later, the Senate’s confirmation of MSPB Chairman Cathy Harris as a board member in May 2022 spurred much of the agency’s work toward chipping away at the backlog. Harris became acting chairman at the time of her confirmation, and officially became chairman earlier in 2024.

More recently, after Leavitt departed the agency, Henry Kerner was nominated and subsequently confirmed as a board member in May 2024.

A strategic approach

Since restoring quorum in 2022, MSPB has taken a strategic approach to reducing the backlog, by focusing first on issuing decisions for many of the oldest appeals cases, as well as “precedential” cases that have the potential to impact other pending cases.

“The board also continues to exercise its discretion to decide cases in a way that balances advancement of legal doctrines, efficiency in case processing and other considerations inherent to adjudicatory decision-making,” MSPB wrote.

About one year after regaining quorum, MSPB had decided more than 2,000 cases, and slashed the backlog in half by September 2023. To try to further expedite the process, the board then launched an “e-Appeal” system, allowing federal employees to electronically file appeals. The transition to the updated system meant that for about a month, the issuance of decisions temporarily slowed down. But the board quickly picked back up its efforts once the system launched in October 2023.

Subsequently, throughout fiscal 2024, MSPB decided another 2,300 cases and managed to bring the backlog down to now just 226 cases, or 6% of the total backlog that the agency had acquired during the five years without quorum.

Accounting for new cases that have arisen in the time since the board’s quorum was restored, MSPB has issued decisions for a combined total of 4,400 adverse action cases for federal employees.

“Since the MSPB’s quorum was restored, it has been our mission to provide decisions to the thousands of federal employees and agencies who had been waiting,” MSPB Chairman Cathy Harris said in a statement Tuesday. “Through the hard work and dedication of the board’s employees and my fellow members, we have been able to nearly eliminate the inherited inventory in 2.5 years. We will continue to work hard to adjudicate the remainder of the cases pending before us.”

In September, MSPB also made several regulatory changes, part of which aims to hedge against stop-ups that could stem from potential board vacancies in the future. The interim final rule, set to officially take effect on Oct. 7, will let the agency take certain adjudication steps to continue processing an employee appeal case even in the absence of a quorum.