Last January marked the fifth straight year the Merit Systems Protection Board (MSPB) has lacked a quorum. Since the spring of 2019, the quasi-judicial body that protects federal employees from unlawful employment practices such as discrimination and whistleblower retaliation has been without a single member on its three-person board. While MSPB Administrative Judges can still issue initial decisions, if an agency or employee files a petition for review of that decision, the Board cannot issue a decision, even a nonprecedential one, leaving many employees, including those who have suffered reprisal for whistleblowing, in legal limbo. An estimated 3,600 petitions for review currently sit in a backlog.
Although last year President Biden made three nominations for the Board—Cathy Harris, Raymond Limon, and Tristan Leavitt—each nominee must be confirmed by the full Senate before serving on the Board. Back in October, the U.S Senate Committee on Homeland Security and Governmental Affairs voted to advance all three nominees; however, a full Senate vote was not held before the end of the calendar year. The nominations of Limon and Leavitt have been carried over into 2022 with bipartisan support; however, Harris will have to be renominated by President Biden.
With all three seats available but only two needed to establish a quorum, many federal employees are hopeful that this unprecedented and unwanted logjam will be broken this year. However, even if the Senate does vote to confirm each of these nominees, there are still many concerns around how the Board will choose to address the case backlog and what options federal employees may have if they have a decision they wish reviewed or that is already stuck in this backlog.
Assuming the nominations go through, how long will it take the new Board members to get through the estimated 3600+ case backlog?
While it’s hard to predict a definitive timeline without knowing of each nominee’s plans and strategies, it is not beyond the realm of possibility that it will take several years for the Board to work through the current backlog. Although it is reasonable to expect that the Board will act quickly to try and issue decisions in an expedited manner, with the sheer volume of pending cases, it will still take a significant amount of time as each individual case needs to be reviewed properly.
Mark Robbins was the last member of the Board, although after January 7, 2017, he was the only member of the Board and therefore without authority to issue any decision. In a recent interview with Federal News Network, he stated that if the new Board were to be appointed and operate consistent with tradition, “that amount of cases would take about five years to process, just given the amount of staff and the time that the three new members are going to need to read through these files. But five years is a vacuum because there are new cases coming in and the new board will have to prioritize the import of new cases with those that have been in existence for up to five years.”
What does this mean for the whistleblower protection system? Are there any cases that will take priority?
Even when a quorum is restored at the MSPB, the massive backlog of cases does threaten one of the avenues federal employees have to combat improper employer actions. Many of the whistleblowers who have their cases pending could be out of a job and facing financial difficulties or, even if still employed, suffering psychological or emotional hardship. Stress on the whistleblower and appellant is further compounded by the delay as evidence becomes stale and witnesses forget critical testimony. Further, potential whistleblowers may be discouraged from exposing abuse or misconduct due to the length of time it may take for their case to finally be determined
During a recent hearing, Nominee Harris did make mention of a few ideas that could be used to triage the backlog, such as identifying matters that could be addressed quickly or cases where there appears to be no legitimate basis on which to overturn the Administrative Judge’s decision. While these initial ideas will probably serve as a starting point, most likely, the Board will evaluate the cases in the order in which they were submitted, with a few exceptions for precedential instances that might have a substantial influence on the law of Federal employment
Looking Ahead
While news of the nominees being carried over is a positive indicator in restoring a quorum to the MSPB, at the moment there are no options for federal employees who have a case stuck in this unprecedented backlog. The best advice that can be offered at this point is to keep an eye on any further developments to see if any opportunity to accelerate the determination of the employee’s case presents itself.
Dedicated to fighting discrimination in the workplace, Stephanie 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 info@tullylegal.com or at (202) 787-1900.
