Stephanie Rapp-Tully, Esq., for Tully Rinckey PLLC
For the first time in five years, the Merit Systems Protection Board finally restored a governing quorum following the Senate approval of two of President Biden’s three nominees last month. With full support from the Senate, Tristan Leavitt and Raymond Limon were confirmed to the Board’s central panel. This is the first time those positions have both been filled since 2017.
President Biden’s third nominee, Cathy Harris, is still awaiting a Senate vote. However, the Board only needs two of the three central slots filled to process appeals. While MSPB Administrative Judges were still able to issue initial decisions, any employee or agency that filed a petition for review would find themselves stuck in the estimated backlog of 3600 cases for review.
Following their confirmation, many have been interested in how the two Board Members will look to work through this unprecedented case backlog and restore this crucial avenue for federal employees to protect themselves from unlawful employment practices.
While difficult to say for certain, Mr. Leavitt and Mr. Limon have committed to work as fast as possible to work through this case backlog, utilizing a case triage system to identify and address the most pressing cases first. In a hearing late last year, Cathy Harris mentioned one possible strategy of issuing “short orders” to help move through some cases faster where there was little explanation for their decisions or had no basis to overturn the Administrative Judges decision. Both Mr. Leavitt and Mr. Limon agreed with the approach Ms. Harris brought up in regards to issuing short orders to try and work through the case backlog. Mark Robbins, former MSPB Board member, estimated that should the Board utilize this system, that around half of the cases in the backlog could be settled this way.
While it will still take some time to make sure that the cases are properly reviewed, and given the sheer number of cases for review, these techniques are anticipated to serve as the Board’s initial gameplan before eventually reverting to dealing with cases in the order in which they were submitted—omitting precedent-setting concerns and those that might have a significant impact on federal employment law.
One concern that might be resolved sooner rather than later as it relates to The Supreme Court’s decision in Lucia v. Securities and Exchange Commission from 2018. Some Agencies have alleged that MSPB Administrative Judges were subject to and therefore not properly appointed pursuant to the Appointments Clause of the United States Constitution (Article II, Section 2, Clause 2). Since the decision, more than 200 cases have had Lucia concerns raised, and consequently, the cases have been dismissed without prejudice until the Board can make a determination. Consequently, it is very probable that this will be one of the first, if not the first, issues addressed by the new Board.
Regardless, restoring a quorum is an important first step toward providing federal employees with a means to challenge inappropriate employer actions. However, because of the amount of time it may take for their cases to be addressed, many potential whistleblowers may be deterred from exposing abuse or wrongdoing. Unfortunately, federal workers who have cases caught in the backlog have no other alternatives, except to withdraw them and file a direct appeal with the United States Court of Appeals. This option is only suggested in circumstances where an obvious judicial error has occurred. Because appealing directly to the Federal Circuit is far more expensive than appealing to the Board, most federal employees would want to avoid it unless they had a substantial chance of winning.
Moving forward, I would advise federal employees to keep an eye on any further developments, as the Board is still without a chairman due to the delay in voting on Ms. Harris. Further, if the Board does utilize this triage system mentioned above, federal employees should remain in contact with their representatives in case the opportunity to accelerate the determination of their cases presents itself.
Dedicated to fighting discrimination in the workplace, Ms. Rapp-Tully has spent her entire career helping public and private sector employees overcome unlawful personnel actions based on factors such as their race, sex, national origin, disability, military service, and age. As a Partner at Tully Rinckey PLLC, she concentrates her practice on federal labor and employment law. She can be reached at firstname.lastname@example.org or at (202) 787-1900.