Visit FedSmith.com to subscribe to our free email list!

What Will the Biden Administration Mean for the MSPB and the Case Backlog?

The author says it is important for the Biden administration to promptly address the case backlog at the MSPB.

Throughout Joe Biden’s bid for the presidency, his campaign was candid about its desire to overturn many of the Trump era policies regarding employment issues, labor law and employee benefits.

One of the most important priorities provided to the team is the establishment of a quorum at the MSPB. The Board has remained devoid of a quorum since January 2017, a record setting four years. With the last remaining MSPB member’s term having ended in March 2019, the Board is approaching the two-year mark for being completely empty in its Senate-confirmed ranks.

According to Whistleblower Network News (WNN), the total number of Petitions for Review (PFRs) pending at the Board’s headquarters was 3,118 as of January 28, 2021. WNN said it obtained the recent figures from the MSPB via a Freedom of Information Act (FOIA) request.

This is a disheartening number to a large number of Federal employees who, without an active Board, have lost one of their few protections against abuse by agency management.

As the partisan skirmishes continue to rage on, many federal employees with an issue at the Board are becoming more downcast, as the lack of any appointed board members means there is little hope for swift resolution of the more than 3,000 case backlog the Board is currently facing. As the Biden administration passes its first full month in office, there is still no word on whether there are any plans for the President to nominate members to the Board.

The reason this backlog exists at this time is the Senate’s previous failure to confirm any of former President Trump’s nominees to fill the Board. Those nominees had been cleared by the Senate’s Homeland Security and Governmental Affairs Committee. However, without a vote by the Senate, the nominations could not go through.

The issue has progressively worsened, as both sides of the aisle are becoming more and more accusatory as to which side is to blame for this record-setting backlog of cases. The former President’s nominations expired on January 3, 2021, with the installation of a new Senate, so now a whole new slate of three nominees must be selected and sent to the Senate for confirmation. Among those three, two must be of the party in control of the White House, while the third needs to be of the other party. With the White House and Senate being controlled by Democrats, it will be interesting to see the new nominations and whether those nomination will be stuck awaiting confirmation as the previous ones were.

Federal employees are in the awkward position of either leaving their cases stuck in the Board’s backlog of cases, or withdrawing their cases from the Board and appealing directly to the U.S. Court of Appeals for the Federal Circuit. However, this option is recommended only in cases where there is clear judicial error. The cost of appealing directly to the Federal Circuit is much higher than appealing to the Board so, in most cases, a Federal employee would want to avoid this cost unless there was a good chance of winning. 

Conversely, even if the employee won at the Administrative Judge level, the losing agency can effectively nullify this decision by filing a PFR with the non-existent Board, forcing the employee to wait interminably before receiving relief, by which time the circumstances may have changed to such an extent that the relief is rendered valueless.

As the Biden administration passes its first full month in office, many Federal employees are hoping that there will be some concrete news as to Board nominations. Judging from the fact that President Biden has already issued executive orders to restore federal employee protections, a timeline for the Board’s reestablishment of a quorum might come soon. However, if it doesn’t, federal employees may very well call on Biden to use all the tools at his disposal to end this record-setting four years of stagnation at the Board. 

About the Author

Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing federal government employees and military personnel. To schedule a meeting with one of the firm’s federal employment law attorneys call (202) 787-1900. The information in this column is not intended as legal advice.