Federal Employee Appeals Board Still Has Years of Work Ahead to Cut Through Its Record Backlog

In 2014, an independent federal agency in charge of researching and enforcing civil service laws across government decided it wanted to know more about federal employees’ experiences with sexual harassment in the workplace. 

In 2016, that agency—the Merit Systems Protection Board—sent a detailed survey to 114,000 employees across two-dozen agencies to solicit the information. 

The response rate was impressive. MSPB received completed surveys from more than 42,000 employees, offering the first such insights into sexual harassment at federal agencies in more than 20 years. The agency took a little more than a year to review the responses and compile a report. By early 2018, it was ready for release. 

There was only one problem: the agency was statutorily prohibited from releasing it. 

Due to congressional inaction, MSPB had lost the quorum on its central board. It could no longer issue decisions that agencies or employees appealed to that level, nor could it issue its research. The agency put out a brief summary of its findings, but it included few details. 

Earlier this year, after five years without one, the Senate finally restored MSPB’s quorum and on Monday, MSPB finally released the report. The data, now six years old, hardly presents a snapshot of employees’ current experiences with sexual harassment. Still, the data is out there, and while many agencies have issued sweeping new sexual harassment policies, they can glean potential lessons. MSPB is back to fully functioning. That means, perhaps most critically, its central board is once again deciding cases. 

The quasi-judicial agency had a record-high 3,500 cases pending in March when Tristan Leavitt and Ray Limon were sworn in as board members and the quorum was restored. Since then, said William Spencer, MSPB’s executive director, the board has decided 750 cases, reducing the backlog by about 20%. Most of those were petitions for review in which employees have accused their agencies of an improper personnel action, and either the employee or agency has appealed further after an initial ruling by a regional administrative judge. 

At that rate, it would take MSPB five years to address the backlog before it could even get to the cases that will have built up in the meantime. The board is promising to pick up the pace, however. In June, Cathy Harris joined the board as its third and final member, a step Limon and Leavitt had said would be key to quicker adjudication. The board is aiming to complete 1,000 cases in fiscal 2023. It is also piloting a Rapid Assessment Mediation Program with the Federal Mediation and Conciliation Service, which will have two full-time employees dedicated to identifying cases for rapid resolution. 

“The board has decided almost 20% of the case inventory it inherited on March 4 and continues to work towards reducing that inventory while assuring that every case receives the attention it deserves from the board members,” Spencer said. 

The board has taken some steps to help move the process along more quickly. Members can vote electronically and most case files have been digitized, rather than moving vote sheets and documents physically between offices. They have created a "triage system" to address the most pressing cases first and used "short orders" to quickly move cases without offering much in the way of explanations. They also hoped to see more cases resolved through settlement agreements, but have signed off on final orders on such cases in just 70 instances. 

Some of the cases have carried significant weight, with 45 of the decisions setting precedent. In multiple precedential cases, the board noted it was taking a "broader view of retaliatory motive” in whistleblower cases. It has, for example, allowed appellants to indict managers for improper retaliation solely on presumption they acted out of the concern for the well-being of their agency, even if they were not directly implicated in the relevant disclosures. The board has also shown it wants distinct jurisdictions for various entities involved in civil service law, such as the Equal Employment Opportunity Commission. More recently, the board upheld an enforcement provision of the 2017 Veterans Affairs Accountability and Whistleblower Protection Act that restricts interim relief for VA employees facing discipline. Much of the power of that bill was previously stripped away by various court orders. 

The reconstituted board has brought stability to the agency by removing the constitutional controversy surrounding the appointment of its judges. It has also brought significant relief to federal employee and whistleblower advocates, who for years said Congress’ inaction was upending and undermining the civil service. Even the conservative Heritage Foundation had called for a functional MSPB, noting that agencies typically succeed before the board. It has also helped the agency regain purpose internally. 

“I think it's really hard to be part of an agency that doesn't have the board the agency is named after,” Leavitt told Government Executive in May. “Just having board members in place really boosts morale. It allows everyone to feel like we're striving to accomplish the mission Congress has given us.”