By Dan Gephart, October 1, 2019
More than 200 employees work for the Merit Systems Protection Board in numerous regional and field offices across the country. But it’s the three offices that sit empty at the Board’s Washington, D.C., headquarters that have drawn the most attention.
It’s been more than seven months since then-Chairman Mark Robbins’ term expired. Robbins spent his last two years as the Board’s only member. The Board has lacked a quorum since January 2017 and, therefore, has been unable to issue final decisions on petitions for review for almost three years.
While those three offices on the MSPB’s Executive Floor sit dark, its career employees continue to toil away. We caught up with General Counsel Tristan Leavitt to find out what the MSPB has been doing – and what it has not been able to do – since former Chairman Susan Grundmann’s departure nearly three years ago, when the Board last had a quorum. Under the MSPB’s continuity of operations plan, Leavitt, as GC, has assumed the responsibilities for the executive and administrative functions vested in the Chairman.
Before joining MSPB a year ago, Leavitt was principal deputy special counsel at the U.S. Office of Special Counsel. He also worked for eight years on Capitol Hill, where he served on the staff of the House Oversight and Government Reform Committee and the Senate Judiciary Committee.
DG: Tell us about the work that continues on the adjudication side at MSPB.
LT: AJs have issued approximately 14,550 initial decisions since the Board first lost its quorum in January 2017. At that point, parties have two options. The first option is to submit a petition for review to the full Board, at which point MSPB’s Office of the Clerk dockets the appeal and MSPB’s Office of Appeals Counsel prepares a draft opinion for Board member consideration.
Of the approximately 2,325 PFRs currently pending at MSPB headquarters as of August 31, 2019, 2,180 have had draft opinions prepared by the Office of Appeals Counsel. (MSPB publishes these numbers monthly.) If a petition for review of an initial decision isn’t filed within 35 days, the decision becomes the final decision of the MSPB, at which point the appellant may appeal it to the U.S. Court of Appeals for the Federal Circuit or, in whistleblower cases, to any U.S. Court of Appeals in the country.
In addition, mixed cases may be appealed to a U.S. district court. MSPB’s Office of General Counsel continues to review such federal filings and represents the MSPB as necessary in litigation.
DG: How many PFRs involve back pay or attorney’s fees?
TL: MSPB doesn’t track at an enterprise level which PFRs involve back pay or attorney’s fees, but 177 are PFRs or cross-PFRs from agencies, and of those, 95 involved the AJ ordering some form of interim relief in the initial decision.
DG: What other work does the MSPB continue to do?
TL: In addition to these various functions surrounding adjudicative work, MSPB’s Office of Policy and Evaluation continues to conduct research pursuant to the agency’s statutory mission to conduct studies of the merit system. [Editor’s note: We’ll have more on the MSPB’s studies in an upcoming article.] Although MSPB does not issue final studies without a quorum, the agency has conducted research and prepared a number of draft reports for an incoming Board to review and consider publishing.
MSPB has also continued to publish a regular newsletter and issue smaller publications on useful topics such as Remedying Unacceptable Employee Performance in the Federal Civil Service, Improving Federal Leadership Through Better Probationary Practices, and The Perceived Incidence of Prohibited Personnel Practices.
DG: What functions have been impacted most, other than the growing PFRs, over the course of this lack of quorum?
TL: Besides the Board itself issuing no decisions, the largest impact on the adjudicative side is the inability to issue stays in response to requests from the Office of Special Counsel. MSPB is also impacted in its studies function and on the regulatory side, where the agency cannot promulgate substantive regulations in the absence of a quorum.
DG: Is there a plan or structure in place so that when Board members are confirmed, they can most efficiently begin to tackle the backlog?
TL: Because the approach to the backlog ultimately is the prerogative of a Board itself, it’s difficult to make definitive plans at this point regarding how to tackle the backlog. Nevertheless, MSPB has taken a number of steps to prepare to swiftly carry out whichever approach a new Board settles on. A new Board will be able to see which types of cases are in the backlog and how old they are. Staff have also drawn up various plans for dealing with the backlog, which the new Board may adopt or modify.