Federal Employee Appeals Board Nominees Preview How They Will Reduce Case Backlog, Handle Vaccine Mandate Challenges

President Biden’s nominees to run the Merit Systems Protection Board promised during a confirmation hearing Wednesday to act quickly to reduce an unprecedented backlog of cases involving agency personnel decisions and acknowledged they anticipate an onslaught of appeals involving COVID-19 vaccine mandates. 

MSPB lost its only Senate-confirmed board member in early 2019 and has not had a quorum since January 2017. While administrative judges have continued to hear cases from federal workers challenging agency personnel actions, more than 3,300 cases have been further appealed to the agency's central board where they have languished, in some cases, for years. Senators on the Homeland Security and Governmental Affairs Committee implored the nominees to act swiftly to address the backlog.

Cathy Harris, nominated by Biden to chair the MSPB, vowed to create a “triage system” to address the outstanding cases. She said she would solicit feedback from the agency’s staff, but would consider factors such as length of time pending and severity of punishment to determine which cases to address first. For many cases, she said, the board will issue “short orders” where they can move quickly without offering much in the way of explanations. She also noted as time has passed and employees or managers have moved on, the potential for settlement may have increased. She said she hoped that up to half of the backlogged cases could be settled. Even with those strategies, Harris said addressing the backlog will simply require time and effort. 

“The other thing is we just have to roll up our sleeves and get to work,” said Harris, an attorney with extensive experience in federal employment law. She noted that it is not just employees who are affected by the longstanding delays, as agencies are also awaiting determinations that “will affect staffing, retention and disciplinary matters.”

Tristan Leavitt, whose nomination was recommended by Senate Republicans and who has served as general counsel at MSPB and as the agency’s de facto head ever since the board became vacant, said the three board members should take the previously unpracticed step of working through cases together to save time. 

Federal employee groups, whistleblower advocates and government watchdogs have all decried the lack of a full MSPB board, suggesting it has left many workers with limited recourse when facing discipline. 

“Prolonged vacancies on the board slow the administration of justice, and, for years, vacancies on the MSPB have prevented federal employees from obtaining relief from prohibited personnel practices,” Sen. Gary Peters, D-Mich., chairman of the Homeland Security and Governmental Affairs Committee, said on Wednesday. 

Leavitt added MSPB also plays a key role in enabling agencies to hold employees accountable. 

“A good portion of my career was spent investigating misconduct in the federal government, including by line-level employees, by managers and even by senior leaders,” Leavitt said. “Holding such employees accountable is key to upholding the morale of the rest of the federal workforce.”

Sen. James Lankford, R-Okla., pressed the nominees on how they would respond to cases when employees challenge disciplinary actions their agencies take after refusing COVID-19 vaccinations. Biden has instituted a mandate for the inoculation of the entire federal workforce—allowing for religious and medical exemptions—and agencies are currently in the process of preparing how they will punish workers who do not comply. All three nominees expressed hesitancy in answering the question, noting they did not want to pre-judge a case they were all but certain to receive. 

Ray Limon, currently a human resources official at the Interior Department and the third Biden nominee, said currently “we don’t have an answer” because the administration is still sorting through the details. He added that having centralized guidance would be essential to ensuring uniform enforcement. 

The Biden administration put forward guidance last week that said agencies “should pursue disciplinary measures, up to and including removal from federal service” for any unvaccinated employees who do not receive exemptions. “In pursuing any adverse action, the agency must provide the required procedural rights to an employee and follow normal processes, including any agency policies or collective bargaining agreement requirements concerning disciplinary matters.”

Harris said MSPB’s purview includes reviewing any guidance coming from the Office of Personnel Management, and she expected the board to scrutinize OPM’s policies as they relate to the vaccine mandate. When an individual employee subject to discipline brings a relevant case to the board, she added, it will review the Douglas Factors to ensure any punishment was within reason. Leavitt, meanwhile, suggested case law appears to signal vaccine mandates in the workplace are acceptable. 

“Generally, in a lot of cases, if there’s a nexus to someone’s work, my general impression is they tend to be upheld,” he said. 

The hearing briefly turned contentions as Sens. Rob Portman, R-Ohio, and Josh Hawley, R-Mo., asked Harris about her history of posting partisan tweets disparaging some conservatives. Harris apologized for some of those messages and promised to take an objective approach in her role at MSPB. 

“The tone I took in a few posts on Twitter, it doesn’t reflect the day-to-day me," she said. “You won’t hear that kind of language from me in my job going forward.”