Federal Employee Appeals Board Poised to Finally Have Members

President Trump this week nominated a third individual to serve at the quasi-judicial agency that determines federal employees’ challenges to adverse actions, paving a path for it to finally regain a quorum on its central board after two years without one.

B. Chad Bungard is Trump’s third appointee to fill the three slots on the Merit Systems Protection Board’s central panel, all of which are currently vacant. The agency is now without any Senate-confirmed leadership for the first time in its 40-year history. MSPB’s administrative judges have continued to issue decisions, but all appeals have been added to a 2,000-case backlog that has accumulated since early 2017.

For the last 10 months, Bungard has served at the Social Security Administration as the deputy commissioner for the Office of Analytics, Review and Oversight. He supervises 2,000 employees in the role, according to the White House, and oversees the office that adjudicates appeals to decisions from SSA’s administrative law judges. He has experience at MSPB, serving as its general counsel during the George W. Bush and Obama administrations. He has also served as general counsel to the special inspector general for the Troubled Asset Relief Program and chief counsel to the SSA inspector general.

Prior to his executive branch experience, Bungard worked for several years on federal workforce issues in the House Oversight and Government Reform Committee.

Mark Robbins, the lone MSPB board member for the last two years until his term expired in March, told Congress in February he expected the agency to operate normally in his absence. MSPB would continue to lack the capacity to make final decisions on appeals or issue studies of the civil service, he said, but will still perform administrative tasks. Tristan Leavitt, appointed by Robbins in October to serve as MSPB’s general counsel, has been serving as the senior official in charge of the agency.

The Senate Homeland Security and Governmental Affairs Committee has already approved two of President Trump’s nominees to serve at MSPB, Dennis Kirk and Julia Clark. Senate Republicans said they would not vote on those two individuals, however, until Trump nominated a third board member to ensure the board maintains a Republican majority. Trump’s previous third nominee, Andrew Maunz, withdrew his name from consideration earlier this year. Clark was recommended for nomination by Senate Democrats.

Federal employee and whistleblower advocates have warned that without a properly functioning MSPB, agencies would lose all incentive to resolve an appeal before it reaches the board. MSPB has said it is no longer able to stay whistleblower referral cases from the Office of Special Counsel while the agency has no board members.

The governmental affairs committee will now hold a confirmation hearing and vote on Bungard’s nomination. Assuming he is approved, the full Senate would likely vote on all three nominees together in a package.