By Dan Gephart, June 6, 2022
When And Now a Word With … last talked with Tristan Leavitt, the word “corona” evoked visions of a weak mass-produced beer not a virus that would eventually take the lives of more than a million Americans. And the Merit Systems Protection Board was in the seventh month of sitting member-less, following the expiration of former Chair Mark Robbins’ term.
As then-General Counsel of the MSPB, Leavitt had assumed the responsibilities for the executive and administrative functions usually vested in the Chair. Over the next couple of years, Leavitt and a dedicated group of agency staff steered the MSPB through its most challenging period.
Three months ago, Leavitt and Raymond Limon were confirmed and sworn in as Members, ensuring a quorum for the first time in more than five years. And now, the backlog of Petitions for Review that we all watched steadily are being addressed. New MSPB Chair Cathy Harris was finally confirmed by the Senate late last month, so the MSPB is back at full strength for the first time in over half a decade.
Like Vice Chair Limon recently, Leavitt very graciously took time to answer our questions, giving us a peek into the new Board’s approach.
DG: Are you satisfied with the current pace with which you and Acting Chair Limon are tackling the backlog of cases?
TL: I think we’ve made a decent start. Both he and I have fantastic staff, and I’ve really appreciated how smoothly our two offices have been able to work together. That said, no matter how fast we move, we recognize that the backlog represents over 3,000 appellants and their agencies awaiting finality, so I doubt we’ll ever shake the sense of urgency that we look for ways to be more efficient.
DG: It appears you are prioritizing whistleblower cases. Is that so and why?
TL: Way back in October 2019 I mentioned in this same forum that MSPB’s career staff had drawn up plans for dealing with the backlog. Primarily, that consisted of identifying a “priority group” of 300 cases as a first group for an incoming Board to address. The group included a mix of all types of cases: easy cases to help new Board members acclimatize, cases dismissed as settled, precedential cases on which a number of other cases hinge, extremely old cases, cases potentially involving large amounts of backpay, etc. When Ray and I were confirmed, we adopted the recommendation of staff and began working through the priority group of cases. Given that whistleblower reprisal allegations are raised in some 25 percent of all cases before the Board, it’s not surprising that the group has included a number of whistleblower cases, some of them precedential.
DG: Are you planning to prioritize any other types of cases?
TL: Since the creation of the first priority group, MSPB staff have developed second and third priority groups that are also approximately 300 cases each. Beyond those groups, we haven’t yet developed a comprehensive strategy for how we intend to deal with the rest of the approximately 2,700 cases in the backlog. To some extent, I would say that’s because we’ve been in an acclimation period, particularly since Ray is new to MSPB, and to some extent it’s probably also because it’s unclear how close we might be to the confirmation of a third Board member. Nevertheless, by the time we’ve worked through the priority groups there will have to be decisions made about where to go next in the backlog, and I would imagine we’d be well equipped at that point to develop a strategy.
DG: You’ve decided to keep the non-precedential cases and while most are 1-2 pages, others are much longer. Can you explain your approach to NP cases?
TL: As Ray noted here recently, MSPB staff have already drafted recommended decisions for approximately 3,400 of the 3,600-case backlog, and those were generally drafted under the procedures in use when last the Board had a quorum. While Ray and I have exchanged proposed edits with one another in cases or sent a handful back to the career staff for particularly involved revisions, I think it’s fair to say that thus far we’ve mostly just worked with the case formats and lengths presented to us by the career staff. As a general matter, I would say the most abbreviated non-precedential orders tend to come in cases where it seems very clear to us there is no jurisdiction or where the administrative judge adequately addressed in the initial decision all relevant issues.
DG: Why has the board talked about likely resuming reissuing short form decisions again?
TL: There has been discussion about how much time could be saved by reverting to true short form decisions, particularly for the types of cases I mentioned above that are only receiving abbreviated orders anyway. On the other hand, drafting a very brief opinion doesn’t seem to be particularly arduous, especially since the shortest already tend to simply state the issue in question and articulate the Board’s standard for granting petitions for review. As I mentioned before, there are a number of decisions to be made that we’ve postponed until we could get our feet wet by working through the priority groups, and my guess would be that this is one of those issues. If we did decide to revert to short form decisions, I’d imagine it would be implemented with newer cases coming in for which recommended decisions haven’t yet been drafted.
DG: There was a lot of focus and attention on that backlog of cases, but how else has the presence of a quorum positively impacted the agency?
TL: The restoration of a quorum is certainly beneficial to agency morale, as all of MSPB’s committed staff are eager to fulfill the full scope of the agency’s important mission. The Office of Policy and Evaluation’s research agenda can now be finalized, and the full version of its studies issued moving forward. MSPB can also update its regulations, which is long overdue in some instances. Finally, while it only requires one Board member and not a full quorum, having gone from no Board members to two also reopens the door to issuing stays requested by the Office of Special Counsel in prohibited personnel practice cases.
DG: What is the status of the agency’s plans for returning employees to the physical workplace?
TL: I largely haven’t been involved on this topic since handing agency head responsibilities over to Ray. However, as far as I’m aware most employees have resumed reentering the workplace at least some days of the week.
Leavitt noted that even pre-pandemic, the MSPB had a relatively high telework rate compared to other agencies. Gephart@FELTG.com
[Editor’s note: How is the Board ruling in these decisions? Join FELTG President Deborah Hopkins for the two-hour virtual training Back on Board: Keeping up With the New MSPB on July 20, starting at 1 pm ET.]