A progress report from the Merit Systems Protection Board

It’s been one year since the three-member Merit Systems Protection Board had a quorum, after several years without one. A big challenge for the board was clearing a five-year backlog of appeals cases. Now it looks like the pace of that clearance is accelerating. For an update, the  Federal Drive with Tom Temin  was joined in-studio by Acting Chairman Cathy Harris.

Interview transcript:

Tom Temin  I don’t want to only talk about the backlog, but that’s the big topic of the board. But it looks like you are getting up into the triple digits per month, clearing this. What’s going on? What’s the current level of the backlog and the pace of clearing it?

Cathy Harris We cleared about 437 cases in the past two months, but that was what I call the sprint because we knew Tristan Leavitt, our third member, was about to leave and we wanted to get out as many cases that he had voted on as possible before his departure. So we redeployed some resources in order to accelerate the pace of getting those cases out. I don’t expect that to continue, but we’re really excited that we’ve cleared so many cases.

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Tom Temin And what are the numbers? You had a couple of thousand, I believe it was, when you came in.

Cathy Harris Yeah, when the quorum was restored, which was about two months before I got there in March 2022, we had about 3,800 cases pending before the board. And since that time, by the end of February, we decided 1,219 cases, about 1,150 of those were petitions for review. And then there are about 75 other kinds of headquarters cases like court remands, arbitration cases, compliance referrals, all kinds of things. And we’ve issued both precedential and non-presidential decisions, which are available on our website.

Tom Temin That was my question. Are the presidential ones, they take longer than the non-presidential ones?

Cathy Harris It depends on the case, but we try to frontload decisions for cases we thought might be precedential, because then non-presidential ones that would follow those cases would be able to be issued more efficiently, if that makes sense. So if you do a big one, a case that has a big holding, then maybe 25 cases follow it and we can just boom, boom, boom get those out.

Tom Temin Yeah. How do you tell from initial here’s a file, It could be electronic, I guess there’s still paper. How do you know whether it’s going to be precedential until you read through the whole thing?

Cathy Harris This I rely on the geniuses and our Office of Appeals counsel, our career staff who look for these things. They look for emerging issues. They look to see, ok, what’s an issue where parties are getting confused on? Or maybe, the federal circuit has told us, yeah, we don’t like it this way, do it another way. And then we try to make a precedential decision to really help guide parties.

Tom Temin Got it. So you don’t break eggs, you already get a carton of pre scrambled egg mix. A step done for you?

Cathy Harris Yes, we’re really lucky. The Office of Appeals Counsel is, what I would say, is like our pool clerks, like in an appellate court would have and they prepare drafts for us and do all the research. And then we either like it or we don’t like it. You may send it back to them for more work. We may rework it ourselves, just totally departments.

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Tom Temin And you mentioned that you had put more resources on to clear the cases before. That was my punch line, that Tristan Leavitt is gone, you’re back down to two people. But what do you mean by more resources? Because there’s the board members that have to read it. There’s the staff, what else have you got?

Cathy Harris So once the board members vote on cases, it goes to our clerk’s office for issuance. And they do a tremendous amount of work to make our decisions look really beautiful and accurate. I’m more interested in the accurate than the beauty. But they make sure that by the time the case is issued, the law hasn’t changed again, that everything is copacetic, that the right appeal rights are given to the parties, all these different things. And plus, it’s a massive undertaking like any adjudicated body, they have to make sure things are law correctly, that the files are dealt with properly. So it takes time and effort even after the votes are done.

Tom Temin And by the way, you don’t discuss them amongst yourselves as board members, right? Everybody reviews the cases from the material and the cases and what the staff has prepared. But you vote independently and then see whether it adds up to three to nothing, or two to one, or one to two.

Cathy Harris Yeah, that’s almost right. We don’t talk to each other directly, because of the prohibitions of the Sunshine Act, in government. We can’t speak with one another without certain.

Tom Temin A formal meeting.

Cathy Harris A formal meeting, right. So we can say hello or have lunch together. We just can’t discuss case adjudication. But we have staff that can kind of go back and forth to talk to each other, sort of, shuttle diplomacy to see if we can reach agreement, consensus on a particular issue or not. And so we do tend to know, especially with cases that maybe are more difficult, we’ll get some guidance from the other on members offices. Hey, what do you think about this? We do some of that.

Tom Temin So staff relays a note that says, could the good an honorable Mr. Limon, Mr. Leavitt, tell me what they think of X, Y, Z.

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Cathy Harris Yeah, that’s right.

Tom Temin Without the British parliamentary phrases.

Cathy Harris Without that, yes.

Tom Temin We’re speaking with Cathy Harris, she is the acting chairman of the Merit Systems Protection Board. And I have asked you whether you prefer chairman or chairwoman, and you prefer chairman for a really good reason.

Cathy Harris It’s in the statute, so I figure I’ll just go with what the law says.

Tom Temin All right. And just a final question about the precedential decisions. It’s precedent and that needs to get out to the world. Out of that 1,219 cases, some number of those will be precedential. Does the precedents get added up in somehow disseminated as new information?

Cathy Harris Yes. First of all, we have are precedential decisions and non-presidential decisions separated on our Web site so you can pull down a menu to read all the precedential decisions. The other thing we do is we issue case reports on our precedential decisions, and also, on noteworthy federal circuit decisions so folks can read those as well. Those are published on the website.

Tom Temin Because the MSPB does do periodic reports, kind of summarizing trends and what people need to know about this whole vast area of prohibited personnel practices and basically how agency management should perform and act toward employees and vice versa. So do the precedential bodies get more than just posted separately, but somehow interpreted and a new volume is added to what we know about this whole topic?

Cathy Harris That’s really interesting question. So we have kind of two sides of the House at the board. We have our adjudicate side, where we speak to federal agencies and appellants through our decisions. This is how we think the merit principle should be applied, or this is where you went wrong agency in trying to terminate this person. We also have a side of the house that’s our studies department, for lack of better word, it’s our Office of Policy and Evaluation. And by statute, we’re required to issue studies regarding the merit system principles and the prohibited personnel practices and other areas of interest to the merit system. So, for example, we just issued a report this week on perceptions of prohibited personnel practices, and it’s an update for 2023. This is a study that’s been done over the years many times, and we periodically update it for the public. That’s published on our website as well.

Tom Temin So that’s an update to an earlier volume?

Cathy Harris Yes.

Tom Temin And who should read that, by the way?

Cathy Harris Everybody should read that. I mean, if you’re interested in merit systems, if you’re a federal employee, if you’re a federal agency manager, an executive, if you’re an HR professional, chief human capital officers, all these types of folks would find, I think, the conclusions very interesting. For example, we take data from surveys that are done across federal government. And what we found, in this report, is the most perceived prohibited personnel practice. That’s really a tongue twister, four P’s.

Tom Temin You did well.

Cathy Harris Thank you. Was an official trying to define the scope or manner of a recruitment action, for the purposes of improving the chances of a particular person’s right to compete for employment. So meaning pre-selection.

Tom Temin Right.

Cathy Harris And that’s the number one perceived prohibited personnel practice.

Tom Temin Is sort of cooking the books in favor of a particular individual.

Cathy Harris Yeah. So if agencies want to decrease that perception among their workforce, what can they do? How can they make things better? Because we don’t want people to think that there’s pre-selection, we don’t want there to be pre-selection, we want merit systems to be upheld. And it may be that a person, who an agency manager thinks is the best for the job, winds up being the best for the job. So that can happen and that’s not illegal. But you don’t want people to think that the system is.

Tom Temin Gamed.

Cathy Harris Is gamed, yes.

Tom Temin Right. Because OPM does issue about 124 flexibilities for hiring. And basically you’re telling agencies, if you’re going to use one of those, use it, justify it, just don’t be the lazy way, which happens to also be a prohibited personnel practice.

Cathy Harris That’s right. We want things to be done fairly.

Tom Temin We are up against the clock for a commercial break. Can you stick with me for one more segment?

Cathy Harris Of course I can.

Tom Temin And the way you mentioned disseminating those presidential decisions, it strikes me that you’re kind of like a model of the Supreme Court. Only instead of the Constitution, you’ve got Title Five.

Cathy Harris Well, that’s probably Tom, the first and only time we’ll be compared to the Supreme Court, so thank you, that’s very, very kind. We’re adjudicators, we’re the appellate body of an administrative agency. But after us, that’s not the end. Unlike like the Supreme Court, that’s it.

Tom Temin A good point.

Cathy Harris Folks can appeal to a court of appeals, typically the federal circuit. Sometimes, like in whistleblower cases or if it’s a discrimination case, they can go to other courts as well.

Tom Temin Got it. And we should talk about the fact that, finally, after years and years, there was a quorum of three members and now Tristan Leavitt’s term was up, he’s gone a couple of weeks now, a few days now. And what does that mean, functionally for the board? And how should we think about this? Because I don’t think there’s a nominee, yet. Right?

Cathy Harris Right. There’s no nominee, yet. We’re waiting. First, I want just want to say I’m really going to miss Tristan Leavitt. He was a really great asset to the board. He came with a lot of experience in whistleblower law. He also held down the fort during the lack of quorum.

Tom Temin And Mr. Leavitt had a number of jobs there, before becoming a member.

Cathy Harris Yes, he was, in fact, general counsel and then he was the acting agency head during the lack of quorum. He really did a great job and we’re really thankful to him for everything he did. So we’re going to miss him. But the good news, that’s the sad news. The good news is that we still have a quorum. You need two board members for the minimum amount of quorum. We have that, myself and Raymond Limon. So we can still do everything we did when we had three members. We can vote on cases, we can issue reports, we can do everything that a quorum allows. So, in Ray’s term, goes through 2025. I think he can hold over another year and there’s no nominee. And I’m here through 2028. And again, I could hold on another year if necessary. So we’re hopeful we’ll get a third board member as soon as possible. I think it’s better for the board to have a full complement, not just because it’s better for us to have more views, but that’s more hands to do the work.

Tom Temin Sure. And is there a bipartisan nature to the MCP, like so many other appointed commissions and boards and adjudicators, [Federal Communications Committee (FCC)], etc.? Do there have to be two of one party and one of the other?

Cathy Harris There has to be at least one of one of the other party.

Tom Temin And he was the other party. But just tell me there’s no real political bias that comes into these types of decisions on MSPB Title Five matters.

Cathy Harris Not that I’ve seen. We agreed on almost everything. So, the law is the law, as far as I’m concerned. And reasonable minds can differ on how it’s interpreted, but none of us are looking at it from a political perspective.

Tom Temin My guest is Cathy Harris, acting chairman of the Merit Systems Protection Board. And getting back to clearing that backlog, especially for the precedential cases, does it come into your mind that there are actual individuals out there? Several per case, the agency people and the employee, who have been waiting, maybe a decade, for what your stamp of approval or disapproval is?

Cathy Harris I know very well, because I spent two decades representing federal employees and agencies, before that MSPB. Some of my former clients are those who are waiting for decisions, some for six years, seven years. And it’s devastating for them to not have finality. People are always going to have the decision that they want. It’s not always going to be the way they want it to go. But I feel very strongly they deserve a decision. And so that’s why I’m pushing, I’m doing everything I can to get these decisions out. People’s lives are ruined by not having a decision,  not knowing what’s going to happen. And I understand it very well. Every day that’s what I think about, people are waiting, we got to get this out. On the other hand, we want to make sure we make the correct decision. We want to do the very best we can, so we can’t rush through them and just, flip a coin and say, ok, this is going to go that way. We want to do it right. And people have been waiting for a long time. So I want to make sure we make the right decision for them. So they deserve a decision, but they deserve a good decision.

Tom Temin And a final question, and I think I know the answer, but you have till 2028, possibly ’29. Do you like the work?

Cathy Harris Oh, I love it. I feel so lucky. I’ve been a litigator, a trial lawyer, appellate lawyer for two decades. But I was an advocate. So this is my first time making decisions. And what I keep saying to people is, when I was a litigator, you would meet the client, you’d get to know them, understand their story and then you’d litigate their case, and basically, live with them and the other side for years. It just went on and on and on. And it was so frustrating to not get finality and relief or at least a decision for these folks. It just took so long. And now, I get to read the file and make a decision, and I just feel so honored. It’s just so wonderful to be able to be on this side, and I’m really happy.

Tom Temin And that’s good to hear, because you did come through something known as Senate confirmation.

Cathy Harris Yes.

Tom Temin Which is a form of modern day torture, you might say, between the paperwork, the legalities, the waiting and some of the stupid questions you get in hearings. That’s mine saying that, not you saying that. So it sounds like you would advise people that are waiting on a dream job, give it what it take, even if it involves Senate confirmation, It’s worth it when you come through that tunnel.

Cathy Harris First of all, I just want to say I think that the rigor of Senate confirmation is important. We want to make sure that good people get into these jobs. We want to make sure that anybody who has such an important job is vetted properly. So I didn’t mind it. It was part of the process. Took a long time. That’s part of the process, too. I think it’s totally worth it. And I would encourage any nominee who’s in that pipeline, hang in there. It gets better on the other side.

Tom Temin And lightning round. Are you working from home or from the office?

Cathy Harris I’m mostly in the office. I’m in the office four days a week. Sometimes I come in on Fridays, too, just because I miss it.

Tom Temin And the staff?

Cathy Harris The staff is there for the most part, at least two days a week. Some come in every day, some are a little bit less.

Tom Temin Telework hasn’t hampered operations at all?

Cathy Harris Well, I think like every agency we had to make do during the pandemic, I wasn’t there. So, we did what we could. I’m seeing real value and hybrid, some time in the office is good, sometimes telework is good. And we’re trying to figure out, what’s the right balance. And as I say, mission first, people always. So you need your people to accomplish your mission, and you need to keep your mission foremost in your mind.

Tom Temin Cathy Harris is acting chairman of the Merit Systems Protection Board. By the way, how does acting come off?

Cathy Harris So I still have to go through another round of confirmation for the chairman position. So since the new year, I got re nominated by the president and then now I have to go through committee. And once I’m through committee, it’s back to the floor to wait for a vote.

Tom Temin All right. So you’ve been through that merry go round once already.

Cathy Harris It’s not as hard the second time around.

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