Merit Systems Protection Board is plowing through its backlog of appeals

The Merit Systems Protection Board (MSPB) has had a quorum for more than two years. When members were finally approved by the Senate in 2022, they faced a backlog of some 3,800 appeals cases. They two members the board does have are within spitting distance of eliminating the backlog. For an update on this an other matters, the Federal Drive with Tom Temin spoke with the MSPB Chairman, Cathy Harris.

Interview Transcript: 

Tom Temin And as we speak, it looks like you will have closed in on about 3,000 of those 3800 appeals cases working with your compatriot there, Ray Limon. And so give us the update. And when it looks like you’re within, as I said, spitting distance of getting rid of the backlog.

Cathy Harris I like when someone refers to my work as involving spitting. I try to be clean. But we are working very hard. As of March 31, we’ve decided over 2500 of the 3800 cases from our inherited inventory. That’s what we call the backlog, which means only about 34% of those cases remained at the end of March. Along the way, we decided about 350 newer cases. So you’re right, we’re closing in on about 3,000 cases total. We expect to clear that inherited inventory by FY 2025.

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Tom Temin That’s not that far off at this point.

Cathy Harris No, it really isn’t. I would say sooner, but some of these cases are thorny and hard. And they deserve extra time to figure out. But we’re working very hard. And what we’re doing is the oldest cases and the newest cases simultaneously. And the reason is we don’t want to create a permanent case update group in our agency that has to update the law, and as the law changes and evolves, we don’t want to be in a permanent hole. We’re coming in toward the middle. You’ll see that we continue to do that. But are pace is, I think, pretty fierce. We’re doing great.

Tom Temin So you’re doing the oldest and newest, and is there a way of glancing at the case and knowing before you delve into it whether this one is going to be complicated and we should spend some time clearing it? Or can you tell this could be a fairly simple one?

Cathy Harris Yeah. I mean, personally, I think I’ve gotten better at spotting the issues and seeing. So I need to do more research. Do I need to have staff look into an additional issue? But the lucky thing for Ray Limon and I is that everything’s been prepped for us already. Our Office of Appeals counsel staff, their lawyers and paralegals have already spent significant time reviewing the record, reviewing the appeal briefs and giving us a preview of what were to expect and drafting a decision for us. So most of the time, I agree with what OAC has done, and it’s pretty simple and fast. Other times I have questions, maybe I have an edit, maybe laws change, things need to be changed. So it really depends. But I think my sniffer has gotten pretty good.

Tom Temin Yeah. We saw one case that was cleared from the inherited backlog where someone, I think got ten years of backpay at one of the agencies. So there’s some real archeology going on here, and it must occur to you at times that this is actually someone’s life here, and not just a academic piece of material we’re reading and rendering a judgment on.

Cathy Harris Yeah, for me, it’s not sometimes it’s always I realize that I spent two decades representing federal employees and agencies, and I had clients who were waiting for decisions for five years. And I saw, it was destructive to their lives to have to wait so long for resolution. And it’s destructive to the efficiency of the agencies to have to wait so long for a resolution. So every day I sit down and I’m doing these cases, and I understand people have been waiting and they deserve justice. They deserve a response. It’s not fair to them. So that’s why we work so hard.

Tom Temin We’re speaking with Cathy Harris, chairman of the Merit Systems Protection Board. And of the inherited cases, has much of it been precedential? Because that means it’s really important and new ground is being broken in this field. And therefore it’s important that the precedential cases get resolved.

Cathy Harris About 2% of our inherited inventory cases have been precedential. That’s a pretty low number. I think that’s because we have a very good body of law that’s developed at the MSPB since 1980 or so, when the board started issuing decisions. And there are new issues that come up. There are issues that we think deserve to be reexamined based on new law, new statutes, new precedent from our reviewing courts, which is typically the United States Court of Appeals for the Federal Circuit or just changes in circumstances. And I think that’s a good thing, that it’s relatively low. It means, I think, that the board had been doing a pretty good job of laying out its precedent in the past.

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Tom Temin Sure. And in looking at a large number of the older cases, sort of all at once, or in this telescope fashion, can you also evaluate maybe the judges that have made the initial decision that’s being appealed and maybe, golly, we overturn 50% of this person, but we only overturn 1% of that person, what’s going on within the staff judges?

Cathy Harris I try not to pay attention to which judge I’m reviewing, because I’m really focused on the legal aspects of the case and the facts, not the particular judge. I’ll say that our judges are fabulous. Most of the time their decisions get sustained, they got it right. And when they don’t get it right, sometimes it has nothing to do with their legal acumen. It has to do with the fact that so much time has passed that the law changed in the meantime, and they didn’t have the benefit of new statutes that are retroactive or a new law that came down from the Federal Circuit. So one of the trends we’re seeing is a bunch of Riemann’s and for instance, performance cases. Chapter 43 performance cases, because the Federal Circuit changed the law on that as it went down. So we had to remain those cases or the VA had come up with a new system to adjudicate some of their cases, which we called 714 after the section of the law. 714 cases had to be remanded, many of them because of developments at the Federal Circuit. The other big trend I’m seeing is remanding whistleblower cases, where we took a too narrow view of the jurisdictional standard and Congress stepped in and said no we intend it more broadly, and the courts agreed. So those are the kinds of things overall that we see in terms of trends of riemanns and reversals.

Tom Temin And by the way, what is the percentage of reversals? That’s not all that high either, is it?

Cathy Harris It’s pretty low. I don’t have the exact number, but it’s not very high. We do track it, I just don’t have it in front of me.

Tom Temin Okay. And not long ago, a month or so ago, month and a half, you were finally confirmed as chair after being acting chair for a year or so, I guess it was a couple of years. And did that make any practical difference in your daily life there?

Cathy Harris I think it makes a difference to the agency as a whole and our stakeholders. I think it’s important for the agency’s legitimacy and stability. Congress cares about us. We see that they care enough to staff us with a permanent head. I’m the first confirmed chair at the agency since 2017, so it’s been some time. In terms of very small practical differences, I get a little raise, so that’s exciting. But other than that, my duties are the same, my responsibilities are the same, and I don’t think anybody thinks I’m any more important than I was a couple months ago.

Tom Temin Because as a confirmed chair, there’s no major policy changes that you really have the ability or the power to make. Fair to say?

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Cathy Harris I had the same powers as acting chair as I have as chairman. And most of our decisions that we make that have significance are done by the members. So Ray Limon, my vice chair, and I both agree on certain things that will have significance to the board.

Tom Temin And I suppose for the judges, these are administrative judges. And you’ve got some administrative law judges, too, I think within the confines of the MSBP. It must be good for their morale, maybe, or sense of belonging in an agency. When Congress didn’t take the time to confirm a chair and not just go with acting indefinitely.

Cathy Harris I hope so, I mean, I think it’s good. I hope the staff thinks it’s good. I hope they are happy to have me continue in leadership. I’m certainly honored. I think I’m working with the very best group of federal employees that there are. We’re all very mission focused, and we have a very important mission happen to be extremely smart and brainy group of individuals. I just feel so lucky to be able to work with them and I’m happy. It’s a great job. We have administrative judges on our staff. You mentioned administrative law judges. We do have some on a contract basis at the board. There are some differences between administrative judges and ALJ in terms of the classification, statutory authority, reporting structure and the types of matters they hear. The [Administrative Law Judges (ALJs)] are required to hear certain types of cases that the board assigned to them by statute. Those are handled differently from how MSBP [Administrative Judges (AJs)] hear cases, special regulations, procedures, and specific case law. But beyond that, these are very technical issues that we would have to have a lot more time to discuss.

Tom Temin And so would you like your legacy to be when your term is up, I got rid of the inherited inventory.

Cathy Harris Yes. We are going to get rid of the inherited inventory. It’s going to be soon and we’re going to have a big party.

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