The Merit Systems Protection Board hit a historic three-year anniversary this month, but it’s not necessarily the good kind.
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Petitions for review, which federal employees and agencies can file when they disagree with an initial decision from an administrative judge, have piled up over the last three years. As of the end of 2019, the backlog of pending appeals sat at 2,529 cases, according to the MSPB.
“That 2,500 number does represent 2,500 cases where individuals are choosing to get in line to wait for a board to come,” Tristan Leavitt, MSPB general counsel, said in an interview with Federal News Network. “It’s a large number, by far the largest backlog there’s ever been at MSPB.”
Leavitt serves as the MSPB’s acting chief executive while the board remains member-less.
He said MSPB attorneys continue to review and draft decisions as if board members were present. But official decisions — and all that paperwork — can’t go anywhere until the Senate confirms at least two of the president’s nominees to the board.
But those nominations have been sitting quietly in the Senate for months — sparking a debate over who’s to blame for the historic absences at the MSPB.
Publicly, it’s unclear what’s been holding up the nomination process.
The Senate Homeland Security and Governmental Affairs Committee easily cleared the last of the three MSPB nominees, Chad Bungard, last June. The president’s other two nominees, Dennis Kirk and Julia Clark, cleared the same committee with bipartisan support last February.
The intent, as has been the plan for many of the president’s nominees, is to confirm all three of the MSPB appointees with a single vote in the Senate by unanimous consent.
That means no senator can have a serious objection with any one of the three nominees, and if one member does object — either publicly or not — the unanimous consent vote likely can’t happen.
Senators could choose to advance only two of the nominees, but the move would break with precedent and expectations. Even in advancing the nominees through committee, Senate Homeland Security and Governmental Affairs Chairman Ron Johnson (R-Wis.) indicated he wouldn’t move the nomination for one Republican candidate without the other.
But multiple sources have told Federal News Network at least one senator still has an objection on one or some of the MSPB nominees, though it’s unclear exactly who has the “hold” — or who has influenced them.
Several sources who declined to speak publicly about the matter have said an objection appears to sit with the Democrats.
Sen. Gary Peters (D-Mich.), ranking member of HSGAC, doesn’t have a hold on any of the MSPB nominees, an aide told Federal News Network.
The Senior Executives Association placed the blame for the hold, at least in part, on the American Federation of Government Employees.
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Without a board, whistleblowers are vulnerable to retaliation and both employees and agencies alike are “stuck in limbo” awaiting action on ongoing personnel disputes, Jason Briefel, SEA executive director, said.
“Given the public statements in support of protecting federal employees, whistleblowers and their rights by key senators including Minority Leader Schumer and Ranking Member Peters, it is deeply disappointing that Senate Democrats are holding the entire MSPB nomination package at the behest of AFGE and others,” he said. “SEA calls on Senate Democrats to lift their hold on the MSPB nominees and to allow a vote. Depriving hundreds of thousands of Americans from access to justice is unfair and wrong.”
AFGE was one of 11 federal employee unions and organizations had written to Senate committee leadership back in July 2018, expressing their concerns with two of the president’s nominees: Kirk, who has been tapped as the MSPB chairman, and Andrew Maunz, who eventually withdrew his nomination last February.
AFGE, along with the National Federation of Federation Employees, had described its concerns with Kirk in a letter to Senate committee leadership last July. They said Kirk lacked the professional expertise to serve on the board, and they raised questions in about his prior business and foreign dealings during his tenure at a private law firm.
In his questions for the record, Kirk said his past involvement in foreign matters was limited.
Tony Reardon, national president of the National Treasury Employees Union, said it was “unfortunate” the board has lacked a quorum for three years.
“The extensive backlog of cases continues to grow, and that means employee appeals are left unresolved,” Reardon said in a statement. “We hope the administration and the Senate can agree on nominees who will be fair and impartial and start the long process of chipping away at the backlog and restoring the full effectiveness of this important agency.”
Steve Lenkart, executive director of the National Federation of Federal Employees, acknowledged he and other unions had concerns with some of the president’s nominees for the MSPB. But with Maunz out of the picture, Lenkart said it was important for the nominees to get the board working again.
“It’s time to get the board up and running,” he said. “I have no idea how a new board will ever dig out of a backlog built over three years, but it’s time to get started.”
If, and when, the board does, at last, reach a quorum, the backlog of pending appeals will take at least a couple years to resolve.
“Ultimately it really depends on the individual board members themselves, their ability to work together as a group and the pace at which they consider cases,” MSPB’s general counsel Leavitt said.
And while the confirmation process for the MSPB nominees has lagged, federal employees and agencies with matters before the board have spent years waiting.
Debra Roth, the managing partner with Shaw, Bransford and Roth — the law firm hosts a program on Federal News Network — has at least three clients whose appeals have been awaiting action the MSPB for several years. In some cases, the agencies haven’t granted requests to put these senior executives back to work, so her clients are being paid to do nothing, Roth said.
Senior executives generally make anywhere from $131,239-197,300 in 2020, according to the Office of Personnel Management.
Federal employees do, in some cases, have other appeal options beyond the MSPB. They can file with the U.S. Court of Appeals for the Federal Circuit, though there are some exceptions.
Debra D’Agostino, a partner with the Federal Practice Group, said her clients continue to appeal to the board despite its status, though she likened the activity to “filing with a black hole.”
“By and large the administrative judges have carried on hearing appeals,” she said. “It’s really come into play the most with cases where maybe we prevailed by the administrative judge and the agency files a petition for review, or where our clients aren’t really able to afford to go to the Federal Circuit or have an issue that doesn’t make sense for the Federal Circuit.”
Bargaining unit employees often have other options to appeal performance and other personnel actions taken against them. Because they, in some cases, can take their grievances to arbitration, they don’t always look to the MSPB for recourse, especially if employees have legal help from their unions.
But as the Trump administration continues to challenge unions over their representation rights, official time use and office space, the current climate has left some in the federal community to consider whether it’s too risky to expose employee personnel disputes to the scrutiny of a Trump-appointed board.
“Depriving hundreds of thousands of American public servants access to justice is unfair and wrong,” AFGE’s Kelley said. “Unfortunately, this administration has shown time and again through nominations and appointments, executive actions and their behavior at the bargaining table that they have no regard for justice, fairness or plain right-and-wrong when it comes to the treatment of federal employees.”
“Maybe it’s better to have the current case law be the current case law, than have a Trump-appointed board make things potentially worse,” D’Agostino said. “Obviously the board has to be split between Republicans and Democrats, but dealing with the status quo law hasn’t necessarily been a bad thing for federal employees, versus potentially having a very active MSPB making things worse.”
But for members of the Senior Executive Service and others not in a bargaining unit, the MSPB is often the only appeal option.
“It’s ridiculous to say that it’s better to have a non-functioning MSPB,” Roth said. “We’ve had all kinds of board members over 40 years of different administrations, some left-leaning, others right-leaning. But we’ve always had a quorum. The decisions might lean a little one way, or they lean a little in the other way.”
“There’s nothing that suggests they would have a partisan agenda,” she said of the current nominees. “Of course you have to send a client to the MSPB; it’s their only appeal right.”