By Dan Gephart, March 21, 2022
It’s just four words, but we are so thankful that we won’t have to include them in any more presentations or articles about the Merit Systems Protection Board. I’m talking about, of course, “lack of a quorum.”
On March 1, the Senate confirmed Raymond Limon and Tristan Leavitt as members of the MSPB. And then on March 4, they were sworn in, officially ending the five-year-and-two-month stretch in which the Board did not have enough members to vote on any Petitions for Review (PFRs), among other stalled functions.
Member Leavitt had been serving as MSPB’s General Counsel since late 2018. In the absence of any Senate-confirmed Board members, he served as the agency’s acting chief executive and administrative officer starting in March 2019.
Vice Chair (and current Acting Chair) Limon is new to the Board, but he comes with a resume that seems particularly fitting for this position. He had an extensive career as a human resources professional, including stints as Deputy Assistant Secretary for Human Capital and Diversity and Chief Human Capital Officer at the Department of the Interior, as well as similar roles for the State Department and Corporation for National and Community Service. He also served as an attorney in the Office of Personnel Management’s Office of General Counsel.
Vice Chair Limon very graciously took some time to answer our questions last week and offered a glimpse into the Board’s approach to that huge backlog of PFRs.
DG: Tell us how you think your experience, particularly in HR at DOI, will help you as you transition to this new position?
RL: Thank you for this opportunity to share my excitement and acknowledge the deep appreciation I have in helping to lead this amazing agency. I am honored for this privilege and plan to contribute the best way I can to the Board’s mission. With that said, I do feel the numerous HR experiences gained over those years have prepared me for this position.
I have over 25 years as a federal career civil servant and 22 years as an executive promoting and defending the merit system principles through my management, policy and legal experiences at various title 5 and non-title 5 Executive branch agencies, while serving in small and large agencies. After practicing law in the private sector, I joined OPM’s Office of General Counsel where I litigated before the MSPB, EEOC, and FLRA and coordinated with OSC and DOJ, along with dozens of federal agency partners.
After enjoying success as a litigator, I accepted an executive position to lead OPM’s Office of Administrative Law Judges (OALJ). While managing OALJ, I oversaw the ALJ personnel system that involved the application, examination, selection, compensation, classification, movement, and oversight for all ALJ positions serving in over 30 agencies. After OPM went through a significant realignment in 2003 and the functions of OALJ were divided among three new OPM divisions, I became OPM’s Director of Compliance and led its merit system compliance reviews for all federal agencies across the nation.
In 2005 and based in part on my earlier experiences as a U.S. Peace Corps Volunteer serving in Honduras, I joined the Corporation for National and Community Service (CNCS). CNCS manages domestic national service portfolio that included AmeriCorps, VISTA, Senior Corps, and the National Civilian Community Corps (NCCC).
In this position, I became the first-ever Chief Human Capital Officer (CHCO) for CNCS and developed and implemented an HR system outside of Title V. While in that position, I was selected by the 100-plus small agency council members to lead the Small Agency HR Council, and in 2006, I represented all small agencies on the CHCO Council. In 2012, I left CNCS to join the State Department and continued serving on the CHCO Council as the Director, Office of the Civil Service HR Management. I had the privilege to work among dedicated civil and foreign service professionals and I was the executive sponsor that rolled out a first-ever developmental program that allowed civil and foreign service employees to go on short-term rotations between their respective personnel systems to close skills gaps, enhance mission knowledge and meet work surge demands. In 2015, I was offered the Deputy, CHCO position at the U.S. Department of the Interior and by 2017, I became the Deputy Assistant Secretary for Human Capital and Diversity and CHCO. Interior has an amazing workforce and operates in over 2,400 locations and almost every occupation covered under the federal inventory of positions (approximately 350) are also found within Interior.
In all these roles, I maintained a constant and valuable connection to the CHCO Council and have had the privilege to work on many issues facing the federal workforce over these years. Over these many years, I participated in a wide variety of partnership functions with the Board, whether attending training or conference panels with its representatives, participating in its surveys, or providing feedback on future studies and evaluations. I bring a wide variety of strategic, tactical, legal, and policy-setting experiences and executive leadership perspectives that will support me well as the Board’s Vice Chair and have developed a deep appreciation for its mission and the professionals that serve there.
DG: You are walking into an an unprecedented situation with more than 3,600 Petitions for Review waiting for you. Do you have a process to address those PFRs? What kind of cases are you prioritizing? Are you considering short-form opinions?
RL: The good news is that of those approximately 3,600 cases, career staff have drafted recommended decisions for about 3,400 of them. This includes updating recommended decisions, when appropriate, in cases in which statutes, regulations, and court precedent may have changed during the lack of quorum.
That said, there are various ways we as a Board could choose to approach the backlog. For example, we could implement a “first-in, first-out” approach, or we could prioritize certain categories of cases, such as precedential decisions, cases involving back pay, whistleblower appeals, or more straightforward cases such as settlements and withdrawals. We’re very cognizant that there’s no right answer here given what we’re facing with the backlog and the fact that the parties have been waiting a long time for a decision from the Board on their PFRs. However, during the lack of quorum, our legal offices collaborated to try and determine which cases were priorities from all perspectives, and so we’re initially taking a hybrid approach to incorporate various types of cases, and we’re prepared to adjust our approach as we move forward.
Similar to the most recent Board quorum, we are planning to issue both precedential and nonprecedential decisions, but the latter will be more tailored to a length that’s appropriate for the issues presented in each PFR, meaning that some nonprecedential decisions will be a few paragraphs while others could be several pages. Additionally, during the lack of quorum period, MSPB staff deployed enhancements to our current case processing systems to provide more flexible and efficient options for the Board as it tackles the backlog.
DG: Have you had an opportunity to address MSPB employees? What is your message to them?
RL: Yes, Member Tristan Leavitt and I had the opportunity to virtually address the entire agency during our swearing in. We both conveyed appreciation to the workforce and acknowledged the challenges and opportunities facing the Board today. I came to this position with high regard and respect for what the Board is tasked with and how it serves our nation by protecting our federal workforce. After my first week of briefings and personally meeting so many of the Board’s professionals, that respect has deepened immensely.
DG: Everyone focuses on the PFR backlog. What other functions are particularly challenging now due to the fact the Board lacked a quorum for so long?
RL: During the lack of a quorum, MSPB could not issue our traditional, fulsome studies with policy recommendations for the President and Congress. [Editor’s note: We discussed those reports with Jim Read, then-director of the agency’s Policy and Evaluation Office back in 2019.] We are looking to move out on that. Similarly, the quorum must also approve a new research agenda that has been prepared.
Notwithstanding the lack of a quorum, administrative judges and support staff continued the mission of the agency and acted with distinction during the pandemic to adjudicate thousands of cases. Similarly, the Offices of the Clerk, Appeals Counsel, and General Counsel made significant contributions to address the increasing backlog and expertly prepared the incoming Board members to take on this challenge. Over the months to come, we are looking to leverage technology to improve the user experience and improve our case management functions and continue to receive input from our stakeholders.
Our legal offices have also been working on updates to our regulations to account for changes in statute and case law, as well as our shift toward more electronic case processing. Updates to the regulations could not be issued while the Board lacked a quorum, but they will be among the new Board’s priorities. The appropriate notices will be posted to the Federal Register in the coming months.
[Editor’s note: With a new quorum now in place, it’s an important time to sharpen your MSPB skills and knowledge. Join us for MSPB Law Week Virtual Training March 28- April 1 or the Getting Back on Board: An MSPB Case Law Update webinar on April 20.]