After five years, the Merit Systems Protection Board looks to finally add three members

For five years, the Merit Systems Protection Board has lacked a quorum, or even any of its three members at all.

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Most federal employees get through their careers without disputes with supervisors. But when they do have a dispute they’ve got recourse. For five years, though, a crucial part of that recourse machinery, the Merit Systems Protection Board, has lacked a quorum, or even any of its three members at all. Now, three nominees are awaiting a Senate vote. For the implications of the missing MSPB, the Federal Drive with Tom Temin turned to long-time federal employee attorney Heidi Burakiewicz.

Interview transcript:

Tom Temin: Ms. Burakiewicz, good to have you back.

Heidi Burakiewicz: Morning. I’m glad to be back. Thank you.

Tom Temin: At the MSPB, of course, some of the functions are operating, because the administrative law judges are deciding cases. But the appeals to the MSPB, of course, are just going into the ether. What’s your sense of the meaning of all that?

Heidi Burakiewicz: Well, it’s immeasurably upsetting for the federal workforce. The MSPB cannot issue a decision on a petition for review, so they can’t issue a decision on an appeal. So essentially, the MSPB, which has jurisdiction over civil service rights to federal employees. Any employee who’s faced an adverse action of more than 14 days, the MSPB has jurisdiction over. The MSPB is the adjudicatory body that oversees whistleblower retaliation cases. And it’s ground to a halt. The last time I checked, there were a backlog of over 3000 cases — that’s over 3000 employees who are waiting for a decision. Perhaps they’ve been unjustly terminated, and they’ve been sitting at home for years, waiting to be reinstated to their jobs, which cannot happen until the MSPB has a quorum.

Tom Temin: Because there was one member for a while who was voting or deciding on cases awaiting the arrival of a quorum that could also look at the same cases and make up an actual decision. But now that he’s gone, and there’s been nobody there for a while, those earlier decisions have no meaning then, correct?

Heidi Burakiewicz: Yes, so none of the decisions, although the MSPB was moving forward and trying to get as much work done as possible, none of the decisions can be issued on an appeal unless there are at least two of the three members who are appointed. So even when there was just one member remaining, although he was gallantly working on decisions and trying to move things forward, none of the decisions could issue. So until there’s at least two members, if they unanimously agree on that decision, then that must be the condition with decision. Without at least two members, there’s just completed inaction.

Tom Temin: And in your experience of recent years, those petitions that go to an administrative law judge — the first level there at MSPB —are those moving along normally?

Heidi Burakiewicz: Some of them. I have heard that there are some agencies that have made the argument that they’ve moved to stay the cases, arguing that the ALJs are not constitutionally appointed correctly, and so that they don’t have authority over their cases. So there are some cases that have just been stayed and aren’t even getting hearing by an ALJ. But regardless, even if the hearing does go forward after that is over, it just sits there without a decision from the board itself. The same applies in labor arbitration. Unions, rather than taking the case to the MSPB, unions can pursue adverse actions in labor arbitration. If there needs to be an appeal from that decision, that also goes to the board at the MSPB. And they’re just sitting there waiting.

Tom Temin: Yeah, so meanwhile now, it was a couple of 1000 a year ago maybe, or 18 months ago. Now, there’s 3000 in the backlog sitting there. And it sometimes takes a while for them to get to that point before they sit and wait, too, doesn’t it?

Heidi Burakiewicz: Absolutely.

Tom Temin: And what about that issue that you raised a moment ago about some agencies feeling that the ALJs — the administrative law judges — are not constitutionally appointed? What’s that all about?

Heidi Burakiewicz: It’s an argument that I don’t agree with. But hopefully, once the quorum at MSPB is reinstated, they can take action to make sure that those cases move forward. And there is no question about the ALJs authority.

Tom Temin: We’re speaking with D.C. employment attorney Heidi Burakiewicz. She’s with Kalijarvi, Chuzi, Newman & Fitch. So if the Senate were to confirm the three appointees that I think have been cleared by committee but just haven’t had their full Senate vote, then, what in your opinion would it take for them to get started? I mean, you walk in there, what do they do first?

Heidi Burakiewicz: Well, they have an enormous backlog of work to get through. It’s my understanding that all of the nominees are ready to get to work and get through the backlog of work and deliver justice to all of those employees and agencies. You know, it’s uncertainty in those 3000 situations on both sides, both for the employer and the employees. And so the nominees are going to have a tremendous amount of work to cut that back.

Tom Temin: I mean, I would think they would need, as a practical matter upon getting into the office, a lot of staff support, just to be able to begin to do the work and understand what to do first.

Heidi Burakiewicz: Probably, I would imagine. As an attorney, having a backlog of 3000 cases — 3000 decisions — it’s somewhat unfathomable to me. You know, when we talk about that number, I have to keep reminding myself that’s 3000 people who are waiting for justice. But to deal with 3000 decisions going through 3000 cases, as an attorney, it’s overwhelming amounts of work.

Tom Temin: And while we have you, you are famous, of course, for conducting two — not ono, but two — class action lawsuits for federal employees that were slow to get paid in the two grand government shutdowns of recent years. What is the status of those cases, by the way? It’s been a while since we’ve asked,

Heidi Burakiewicz: They are on appeal to the Federal Circuit Court of Appeals. The 35-day government shutdown that went from December 2018 to January 2019 — the briefing is complete in that appeal. And we are on the tail end to finishing the briefing for the 2013 shutdown. And as soon as that’s done, the court will set an oral argument date, and we are very much so looking forward to the oral argument and getting a decision in the case.

Tom Temin: Yeah, so then there is that once there’s a decision is in the earlier case, it took forever for the government to actually figure out the dollar amounts per employee. So what’s your best estimate of how long this could run on?

Heidi Burakiewicz: Um, well, I certainly hope that we get a decision by the court of appeals this year. And in the 2013 case, the government has hired an outside entity to conduct the damage calculations. And as we’ve talked about, in the past, there were a lot of hurdles to cross during that damage calculations process, figuring out how to get the payroll data for all of the employees electronically downloaded, hiring an outside entity to do an audit and conduct the damage calculations for all the different agencies that have the different types of payroll information, and complete that process. But that’s done, for all intents and purposes. So we’re looking forward to a decision from the Federal Circuit upholding the decision that we want. The government violated the Fair Labor Standards Act by requiring essential employees to go to work and not pay them on time. And then we’re also looking forward to getting that decision in the 35-day government shutdown case. Once we have that, because of the work that we did in the 2013 case with the damage calculations, I’m very optimistic that we’ve laid the groundwork. We now know how the government has figured out how to get the information electronically downloaded from the payroll centers. We went back and forth; we’ve negotiated and agreed on the formula for how those damage calculation should be conducted. We put in all the legwork so that we can now just apply it to all of the employees who were harmed in the 35-day government shutdown case. And I can’t emphasize enough, you know, I can’t imagine going 35 days without getting paid. And there were people that suffered greatly during that time.

Tom Temin: So it sounds like you’ve helped the government develop a muscle that it really needs — that is, to be able to back calculate these kinds of payroll issues.

Heidi Burakiewicz: Yes, as we’ve discussed the 2013 case, litigation never goes fast. But the work has been done. And I hope that there are no more government shutdowns. And certainly if they are, that action is taken to make sure that employees who are working are paid on their regularly scheduled paydays. I hope that there’s no need to file any additional litigation over this issue.

Tom Temin: Attorney Heidi Burakiewicz is with Kalijarvi, Chuzi, Newman & Fitch. Thanks so much for joining me.

Heidi Burakiewicz: Thank you for having me. It’s always a pleasure.

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