A federal appeals-deciding agency that has been unable to decide appeals for more than two years because of a lack of leadership is one step away from restarting that work, after a Senate committee action Wednesday.
Nominees are ready for confirmation by the full Senate to fill all three seats on the Merit Systems Protection Board, which has lacked a quorum since January 2017 and which has had no members for four months.
The MSPB is the main channel for federal employees to challenge discipline and other workplace decisions against them. Its lower-level hearing officers, called administrative judges, have continued to issue decisions, but the governing board hasn’t been able to consider appeals of those decisions.
The result is a backlog of 2,151 cases and uncertainty about which will get attention first and how long it could take to work through all of them — while new cases continue to come in at the rate of about 1,000 a year. The oldest, from 2015, involves alleged reprisals against a whistleblower.
“It’s the board’s prerogative. There is no guide to how they ‘ought’ to do it,” said Tristan Leavitt, the MSPB general counsel and acting chief executive and administrative officer. For example, there is no MSPB rule or precedent that the oldest or apparently easiest should go first, he said.
Prioritizing cases raises difficulties because they “are important to every individual. Many people have been waiting for two, two-and-a-half years and you don’t want to give anyone the impression they’re less important. People’s lives are really tied up in this, and we’re really cognizant of that,” he said.
“It will be a welcome change to have a fully functioning board. There’s tons of cases, important cases, that need to be heard,” said Michael Kator of Kator, Parks, Weiser & Harris, a firm that specializes in federal employment law. “How long is it going to take to review 2,100 cases? Years, under the best of circumstances.”
With the board not issuing decisions, he has had to advise clients that filing an appeal there “is not going to get you anywhere for a long time,” he said. Some took an alternative route of filing directly to federal court.
Even without a board able to make decisions, MSPB staff have continued to analyze pending cases, laying groundwork for potential decisions. Mark Robbins, who served as the lone member for more than two years, reviewed many of them, and the new members will have access to his opinions, but his views will have no authority.
“A lot of the work has been done and it’s going to be a matter of the members sitting down and looking at it and deciding,” said Cheri Cannon, head of the federal sector labor and employment practice of the Tully Rinckey law firm and formerly chief legal counsel to a board chairman.
But she said that clearing out a backlog of that size still will take the new members “a year or more, in my experience. Each of them is going to have a learning curve about what is expected of them and the process. It’s going to take them time to get into a normal rhythm.”
“Once the spigot is opened, I think you’ll see a regular flow of decisions,” she added.
Leavitt said that MSPB staff have prepared a “possible scenario” for restarting the board: a grouping of cases that includes some of the oldest, some with high urgency, some where the outcome seems clear and some that would set precedent for deciding others. But he added, “The board is not bound by that in any way.”
During confirmation hearings, all three of the nominees who have now passed the Senate Homeland Security and Governmental Affairs Committee said that the backlog was the main challenge ahead for the agency, although none laid out specific plans for tackling it.
The nominee the panel approved Wednesday, B. Chad Bungard, said at a hearing last week that he would “work to reduce the backlog as quickly as possible while assuring the quality of the decisions.” The committee previously had approved two other nominees — Dennis Kirk (as chairman) and Julia Akins Clark, who at their hearings last year similarly said that tackling the backlog would be their top priority and that they had experience with such tasks.
Kirk is an attorney in private practice who formerly was a career official with the Interstate Commerce Commission and the Army. Clark is deputy general counsel of the Office of Compliance, an internal congressional ethics office, and is a former general counsel of the Federal Labor Relations Authority. Bungard, who heads the Social Security Administration office overseeing appeals of that agency’s administrative law judges, is a former general counsel of the MSPB.
Kirk and Clark were nominated last year along with a third nominee, but they never reached a committee vote through year’s end. Early this year, all three were renominated, with Kirk and Clark soon approved by the committee as the third withdrew. Although two members would make a quorum, Republican leaders held up a floor vote on them to fill all three seats at once.
Bungard then was nominated for the third seat and was approved by voice vote Wednesday without comment from any committee members.
If approved by the full Senate, they will lead an agency that does have experience with large backlogs. There was a spike in appeals after the mass firings of air traffic controllers for striking in 1981, and another followed the “sequestration” unpaid furloughs of 2013. Both times, many of the cases shared the same basic facts and legal issues.
The backlog now before the MSPB, in contrast, involves a broad range of issues and individual situations. Some have in common a 2017 law giving the Department of Veterans Affairs broader powers in disciplining its employees. The board lacked a quorum by the time that law was enacted and has not decided on issues arising from it.