Federal Employee Appeals Board Nominees Pledge Equity, Quick Action on Backlog

All three of President Trump’s nominees to serve on the quasi-judicial board that adjudicates adverse actions against federal employees to ensure compliance with merit system principles on Thursday lauded civil service laws and pledged to maintain a fair system that protects the workforce against abuses.

The Merit Systems Protection Board nominees told a Senate Homeland Security and Governmental Affairs subcommittee that they would work expeditiously to address the largest backlog of cases in MSPB's history. The backlog has continued to grow since the board lost its quorum—and with it, its ability to decide on appeals—in January 2017. The agency now has 1,250 employee challenges to agency adverse actions awaiting decisions. Lawmakers pressed the nominees to, if confirmed, develop plans to quickly reduce the backlog while maintaining fairness and ensuring each case receives the attention it deserves.

Dennis Kirk would serve as MSPB chairman. He most recently worked in the Army’s general counsel office, after a nearly 30-year career at a private sector law firm.

Kirk said as chairman he would “seek modernization of the workforce, enforce fair treatment and safety for whistleblowers and ensure a workplace free from prohibited personnel practices.” In his role as agency head, he promised to he recruit and hire “the very best qualified” workforce.

Julia Clark, another board nominee, previously worked for the International Federation of Technical and Professional Engineers, a union representing federal workers. She subsequently served as general counsel at the Federal Labor Relations Authority and most recently in the legislative branch’s Office of Compliance. Clark pledged “unqualified commitment to protect the merit system principles” and said the thousands of federal employees she has met throughout her career were the “foundation of my faith in the enduring value of the federal civil service system.”

Andrew Maunz was nominated to MSPB after serving as an attorney in the Social Security Administration’s general counsel office. His nomination troubled some board observers over his role in defending the agency against discrimination and retaliation charges brought by a former SSA employee. While the long-running case pre-dated Maunz’ arrival at SSA in 2009, he and another agency attorney took over representation of SSA during the dispute in 2011. The plaintiff ultimately prevailed. In a ruling, a federal judge noted the office in which the plaintiff worked “was dysfunctional and under the management of supervisors whose management skills and performance were deficient in many respects, including unfavorable treatment of older women working in the office, compared with younger women and male attorneys." The judge noted SSA “should be faulted for its failure to comply with the statutory requirements and the purpose of the Civil Rights Act. It is ironic that a government agency would violate the protections afforded by the Civil Rights Act in the treatment of its employees and then vigorously attack the complaining employee when she attempts to seek redress in this court.”

“In my opinion, the MSPB fulfills its mission best when it applies the relevant legal authorities as they are written and does not stray beyond its statutory mandates,” Maunz said at the hearing on Thursday. “The job of the MSPB is not to favor one side versus the other. It is to protect our civil service system by reviewing the facts and applying the law in a neutral and fair way.”  

Kirk and Clark were particularly effusive in praising federal workers and the laws that protect them. The chairman-designate said MSPB should serve to “celebrate their service,” while Clark called civil service laws fundamental to a functioning democracy.

To address the unprecedented backlog, Kirk said he would pull from the administrative law judges and other staff to “bulk up our processing.” He pledged to work with his fellow nominees to develop a plan of action. Both he and Clark cited experience they had in addressing backlogs, Kirk at the Army Science Board and Clark in slashing a cache of 1,000 cases before the FLRA.

“I am sure if we are confirmed one of the first things we’ll do is meet with staff to come up with an action plan for clearing the backlog and to prioritize cases,” Clark said.

Sen. James Lankford, R-Okla., chairman of the Regulatory Affairs and Federal Management subcommittee that held the hearing, noted the importance of addressing the backlog but implored the nominees to “maintain the fairness of the process.”

“What I need to hear from you is this group is not going to feel the need to hurry and to not give a full hearing to the cases coming before them,” Lankford said. “You’re going to feel the pressure to get caught up on the backlog but that individual that’s been waiting a long time is feeling the pressure of waiting that long to get a good decision on it that’s fair one way or another.”

Kirk assured the chairman those individuals would receive “full, complete justice.”

For the last 18 months, Mark Robbins has been the lone remaining board member. He has been able to perform administrative and executive functions, but not act on any petitions for reviews of decisions made by regional administrative judges. Those judges have continued to issue rulings, about 1,250 of which employees or agencies have appealed to the central board where they now sit in limbo. Robbins has continued to weigh in on the appeals, but nothing can happen to them until a new member is confirmed.

If the three nominees appearing before the Senate panel on Thursday are confirmed, Robbins would be replaced and his opinions would be thrown out.

Attorneys representing employees before MSPB have said agencies whose negative personnel actions were overturned by administrative judges have appealed to the central board to gum up the system and intentionally leave cases 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, a more expensive, but faster, option.

Even if MSPB is able to work its way through the backlog, the nominees said they are preparing for an additional onslaught of new work. They were hesitant to take a stance on recent action in the House on legislation to expedite the firing process, but said they would enforce whatever laws Congress enacts.

“There may be [reductions in force], furloughs, firings,” Kirk said, adding “we have to deal with that” and “get a system into place quickly.”

Editor’s note: This story has been revised to clarify Andrew Maunz’s role in defending the Social Security Administration during a lawsuit with a former employee.