With Board Hamstrung, Federal Employee Appeals Backlog Grows to Largest Ever Total

The backlog of employees challenging their firings, suspensions and other negative actions reached an all time high last year, as a lack of political appointees at the quasi-judicial agency with oversight of the appeals process has blocked the agency from conducting its normal activities.

The backlog of cases before the Merit Systems Protection Board’s central panel stood at 750 cases at the end of 2017, the largest in its history. The outstanding appeals began piling up last year when the MSPB chairwoman, Susan Tsui Grundmann, left the agency. The three-person panel was left with just one presidentially appointed, Senate-confirmed board member and without the quorum required to issue decisions. Mark Robbins, the lone remaining board member, can perform administrative and executive functions, but cannot act on any petitions for reviews of decisions made by regional administrative judges.

Those judges have continued to issue rulings, hundreds of which employees or agencies have appealed to the central board where they now sit in limbo. Robbins has continued to vote on the appeals, but nothing can happen to them until a new member is confirmed.

The backlog includes “regular petitions for review and other cases such as enforcement cases, requests for review of regulations of the Office of Personnel Management, and original jurisdiction cases,” MSPB said in a report earlier this year.

The agency may soon be able to push those cases out the door, however, as President Trump on Monday nominated Andrew Maunz to serve on the board. Maunz is currently a senior attorney in the Social Security Administration’s general counsel’s office.

That background should help him hit the ground running at MSPB, said Cheri Cannon, a managing partner at the federal employment law firm Tully Rinckey, as he has likely practiced cases before and is familiar with the process. The fact that Robbins has already cast his vote will also expedite the cases. Their rulings will only take effect if they agree. A one-one tie would affirm the administrative judge’s decision.

That will still come as good news to federal employees, Cannon said. Agencies whose negative personnel actions were overturned by administrative judges have been able to “gum up” the system by appealing to the board, knowing employees’ cases would merely sit unresolved. Employees may have gained some interim victory—winning back their jobs if they were found to have been wrongfully fired, for example—but they will not receive other relief judges had ordered, such as back pay and court fee reimbursement, until the board issues a ruling.

Some federal employees who lost an initial ruling before an administrative judge have decided to leapfrog the central board and go directly to the federal circuit. Cannon said some of her clients have chosen that option when their cases were strong enough.

“It’s far more expensive but a lot faster,” said Cannon, herself a former MSPB employee.

John Mahoney, another federal employee attorney, said he expects the board to deal with a large portion of backlogged cases, those that are easier to rule on because they do not meet the agency's standards for a petition for review, within two months. 

"I think the board has probably come up with a way to triage the reviews that have been building up over the last year," Mahoney said.

Maunz’s confirmation would bring much needed relief to MSPB. The board has predicted its workload will soon ramp up dramatically as agencies, at Trump’s direction, look to shed employees.

“Workforce reductions could mean an increase in appeals involving furloughs, [reductions in force], or early retirements through Voluntary Early Retirement Authority and Voluntary Separation Incentive Payment,” MSPB said in its report.

It also predicted that recent legislative changes and potential budget reductions would require the agency to issue more reports and conduct additional reviews to ensure agencies adhere to merit system principles and reject prohibited personnel practices. As Congress has changed firing authority for the Veterans Affairs Department and passed other civil service changes affecting MSPB, the agency has been unable to “promulgate necessary regulations to implement these new authorities” due to its lack of a quorum.  

If Maunz is confirmed, Trump will either have to nominate candidates or the existing board members will have to work quickly. Robbins’ seven-year term actually expired on March 1, but he is statutorily entitled to a one-year “carryover” year if no replacement has been named.

"This is a step in the right direction," Cannon said of Maunz's nomination. "We need to get these cases going."