The Merit Systems Protection Board has lacked a quorum of members for nearly five years, meaning the body responsible for issuing rulings to uphold merit principles and protect whistleblowers has been handicapped in its mission.
According to Sen. Gary Peters, D-Mich., the MSPB case backlog stands at about 3,300 cases, each of which is awaiting a formal decision.
Cathy Harris, who is President Joe Biden’s pick to chair the MSPB, told the Senate Homeland Security and Governmental Affairs Committee on Sept. 22 that, if confirmed, she intends to set up a triage system that addresses the most pressing pending cases first, then gets through the backlog as quickly as possible.
“I would first meet with the staff, who I know have come up with several ideas and plans for adjudicating the backlog. After I hear their ideas, my plan is to get a triage system in place. There are different factors we can look at as to how to most effectively adjudicate the backlog. The most obvious one is age of the case — let’s do the oldest ones first. But there are also other factors that I think are important; for example, relative importance of the case to the appellant and the agency. For example, terminations may be on the higher end of the triage system than suspensions,” Harris said.
“I would also recommend bringing back what in my practice we knew as the board’s ‘short-form decision.’ The short-form decision is similar to when a federal court affirms or denies or remands the underlying decision without the lengthy explanation of the reasons for the decision. There are many cases for which that would be appropriate; for example, they’re untimely, or there’s a lack of jurisdiction, or the administrative judge’s opinion is really well reasoned and well stated and there’s nothing more to add.”
Biden’s two other nominees for the MSBP, Tristan Leavitt and Raymond Limon, agreed that implementing both a triage system and short-form decisions would be important steps in addressing the backlog.
But Leavitt, who currently serves as general counsel for MSPB, also noted that the board generally processes about 1,000 cases a year. That is also typically the number of cases the board received in a year.
At that rate, it would take the MSPB more than three years to address just the cases currently in backlog, notwithstanding the usual number of cases that will be added to the pile each year.
MSPB’s last member Mark Robbins, predicted that the nearly 2,000 cases in backlog when he departed the position in March 2019 would take three years to process.
According to the MSPB website, this is not the first time the board lacked a quorum, as the agency had only one member from March 2003 to November 2004. But the past two and a half years have marked the first time the MSPB has been without any members.
In addition to an inability to rule on merit system and personnel cases, an empty board means the MSPB cannot issue stays against punishing personnel that may qualify as watchdogs, cannot sign off on important research conducted by the agency and cannot perform oversight to ensure that Office of Personnel Management policy conforms to merit system principles.
For example, MSPB would normally have two areas of influence over Biden’s recent executive order mandating all federal workers get vaccinated: ensuring OPM guidance on the order conforms to existing merit system requirements; and hearing cases from employees that received disciplinary measures as a result of their refusal to get vaccinated.
MSPB board members cannot issue pre-decisional opinions on the legality or illegality of such orders, but Leavitt did note that “my general impression is that they tend to be frequently upheld.”
This lack of members does not mean MSPB is entirely silent, as administrative law judges can still issue decisions on cases that have not reached the board level. In addition, staff can prepare case notes and the agency can release smaller research into merit systems issues. But the most influential functions of the agency have been unable to proceed.
Then-President Donald Trump nominated three individuals to serve on MSPB in 2018, but issues with one nominee meant that none could proceed, per Senate committee policy that such nominations move forward en masse or not at all.
That policy could again have the potential to stymie efforts to restore board membership, as some Republican members of the committee took issue with Harris’ previous social media posts. In them, Harris criticized then-Supreme Court nominees Brett Kavanaugh and Amy Coney Barret, and disagreed with the prohibition of diversity training in the federal government under the Trump administration.
“I’ve represented Democrats, Republicans, people who have no idea what their party is. I represented federal agencies under, I think, every administration for the past 20 years. And my personal opinions, I’m very well practiced at putting them aside and advocating for my clients in the most zealous manner that I can,” Harris said. “The board doesn’t ask parties what their political affiliation is, and in fact it’s one of the prohibited personnel practices.”
The differentiation of professional and personal opinion, however, did not sway Republicans to support Kiran Ahuja’s nomination to serve as OPM director, which passed solely on Democrat votes in June.
Democrats do have the majority to also confirm Harris, if no Republicans choose to support her, though it would require every Democratic senator, both independent senators and a tie-breaking vote from Vice President Kamala Harris to do so.
The committee has not yet scheduled a business meeting to hold initial votes on the MSPB nominations.
Jessie Bur covers the federal workforce and the changes most likely to impact government employees.