The Merit Systems Protection Board’s third, and final, member has stepped up to the plate, to help wade through about 3,600 pending cases.
Prior to the Senate’s May 25 confirmation of Cathy Harris as the third and final MSPB member, previously confirmed members Tristan Leavitt and Raymond Limon have been chipping away at a small number of the pending cases.
Leavitt and Limon have “made good headway” by issuing 200 decisions out of an initial group of about 300 cases that the MSPB staff handed to the board, Harris told Federal News Network in an email.
“Once we finish that group, I expect the staff to provide us with a next grouping of 300 cases or so,” Harris said.
MSPB reached quorum for the first time in five years after the Senate confirmed Leavitt and Limon in March. With Harris now the official third member, this is the first time MSPB has had a full three-person board in seven years.
MSPB is tasked with protecting federal employees against prohibited personnel practices, such as whistleblower retaliation and employees who believe they were wrongly terminated. Federal employees and agencies can appeal to the three-member board about cases on which an MSPB administrative judge previously issued a decision. The board members then adjudicate those cases.
Harris currently serves as acting chairwoman for MSPB, overseeing hiring and litigation decisions, and overall management of the agency. The Senate has not yet confirmed Harris as chairwoman.
Confronting the MSPB backlog
After the Senate confirmed her, Harris said she, Leavitt and Limon are primarily focused on the 3,600 cases that the board must adjudicate. The backlog grew significantly during the absence of a quorum for the board.
“Appellants and agencies have been waiting for years for resolution, and it is our responsibility to adjudicate these cases thoroughly and efficiently,” she said.
Breaking down how exactly to take on the huge pending caseload is complicated. To start, the MSPB staff gave the board a large mix of case types.
“These include … cases that may include an award of backpay, whistleblower cases, certain retirement cases and several of the oldest cases. The grouping also includes some simpler cases to assist us in getting our feet wet,” Harris said.
But how quickly the board can get through the pending cases is still in the air. Mark Robbins, a former MSPB board member, said the new board could start by focusing on cases with clear-cut decisions, but getting through the simpler decisions quickly still means there are more complex cases left in the backlog.
“You’ve cleared a lot of brush, but you’ve still got some big trees that need to be either taken down or pruned,” Robbins said, who now works at the Election Assistance Commission.
The board will, in part, prioritize cases based on how old they are, but will also include some newer ones, depending on how time-sensitive the issues are, Harris said. Certain cases may have pressing issues that should be adjudicated more immediately.
If MSPB pushed all new cases to the back of the decision line, it would be a long time before the board voted on them. By the time the board got to them, Harris said, those cases would have to be updated or possibly reworked because of changes to statutes, regulations and case law. The delays would create processing inefficiencies.
Along with the backlog, the board will have to continue working through new cases as they come in.
“You’ve got active new cases coming in, which may be equally as important. The backlog doesn’t exist in a vacuum,” Robbins said.
Robbins added that approaching the backlog with a mix of cases, by folding in a few easier ones, can help the members focus on some of the older or harder cases, and learn how to best collaborate as a full board.
“They’re going to have to get used to working with each other [and] their staffs are going to have to get used to working with each other,” Robbins said. “As an initial path forward, doing a little bit of a mix is probably good because it will give the three members of the board an opportunity to see what actually is in the backlog, what’s coming in now [and] where might they need to focus given that they’re all three new to the board.”
Jim Eisenmann, a former executive director and general counsel for the MSPB, now a partner at Alden Law Group, said using “short-form” opinions may help sift through the backlog more quickly.
Those decisions, which offer little explanation in cases where the board doesn’t decide in the employee’s favor, comprised about 75% of cases up until about 2010. Then, more detailed decisions started becoming prevalent, requiring more work for the board to get cases out the door.
MSPB members: Three versus two?
Although the board reached quorum in March, having a third member still makes a significant difference. The three-member body will help avoid potential ties on cases, along with some other issues the board can prevent now with three rather than two members.
“Once a quorum was restored, the board members could vote on cases. However, if they split their votes, the decision of the administrative judge would become final. Having three board members permits for a full appellate review of the initial appeals and eliminates the issue of split votes,” Harris said. “If one board member must recuse from a case, it permits the appeal to still be voted upon by the other two board members.”
She added that a three-person board will help MSPB move through the backlog more quickly, as there are now more people to review and process cases.
Complicating the situation, though, employees whose cases have been pending for several years may have challenging aftereffects of the board’s decision, Robbins said. If a decision goes in favor of an employee, the individual, for example, might be entitled to backpay. In some cases, the board may require an agency to rehire the employee.
“That means they’d get their old job back, which after six years, you’ve got to wonder what the agency has done with that job. Did they backfill it? Does it even exist anymore? Did they go through restructuring?” Robbins said. “Now the agency is going to have to figure out what it wants to do with that. How do you deal with bringing in someone who hasn’t been around for that long? That could be very complicated.”
Along with issuing case decisions, MSPB is also responsible for reporting on the health of federal workforce management. MSPB conducts special studies on agencies to report to the White House and Congress, determining if federal workers are adequately protected from prohibited personnel practices.
The board was unable to completely fulfill this duty before reaching quorum, but in the meantime the board’s Office of Policy and Evaluation continued to publish a monthly newsletter related to some of the report topics.
Eisenmann said the office would also have already issued draft reports in preparation for the new board coming in.
“There are reports about recruitment, hiring, retention, performance management [and] supervision,” Eisenmann said. “It’s an important function of the board. The studies are often cited by members of Congress and other nongovernmental organizations regarding best practices [and] the state of the law in certain areas,” Eisenmann said.
Harris said as part of her new role, she’s focused on working with the other two members to release some of those reports.
Although her background is partly in the private sector, Harris has a long history of representing federal employees and agencies before MSPB, the Equal Employment Opportunity Commission and in federal courts.
“I developed a broad understanding of the federal-sector case law that applies in MSPB cases, which is helping me render decisions in the cases before me. After being in private practice for quite some time, I am honored to have the opportunity to return to public service,” she said.