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‘Buckets of Back Pay’ Could Go to Feds Once Appeal Board Is Back

Sept. 25, 2019, 9:40 AM

The government will be on the hook for millions in back pay, attorneys’ fees, and interest to employees who’ve been wrongly dismissed once the board responsible for hearing appeals of agency personnel actions is finally confirmed by the Senate.

A federal worker making $100,000 who’s been waiting two years for the Merit Systems Protection Board to decide his or her case easily could be owed $300,000 in back pay, interest, and attorneys’ fees, said Bill Wiley, a San Francisco attorney and former chief counsel to the MSPB chairman. “Eventually these employees are going to have their day in court, and some of them will get buckets of back pay,” he said.

MSPB figures show the backlog at the end of August reached 2,325 cases. Going back to January 2017, an average of about 57 cases are added to the total each month.

It’s safe to say that back pay, attorneys’ fees, and interest will be awarded in 3% of the roughly 2,400 backlogged cases the board will face by the end of September, said Cheri Cannon, a partner at Tully Rinckey who also previously was chief counsel to the MSPB chairman. Assuming an average award of $100,000, the government easily could owe about $7.2 million for 72 cases where employees prevailed, Cannon said.

Back pay and other costs likely will exceed that amount, Wiley said. About half the backlogged cases involve removals, and agencies lose removal appeals about 25% of the time, he said. That would mean about 290 cases where back pay would be owed based on the backlog as of the end of August.

Tristan Leavitt, the board’s general counsel, declined to speculate on how much might be owed in back pay, but said the amount will grow until a new board is in place.

“Clearly the longer it takes before a board quorum is confirmed, the larger the back pay that might be due to any employee the board finds in favor of who wasn’t already put back to work by an administrative judge. It’s nearly impossible to calculate how much agencies might ultimately end up paying out, though, since that would completely depend on how a new board rules in each individual case,” Leavitt said.

The three-member board hasn’t had a quorum of at least two members to decide appeals of administrative judge rulings since January 2017, and it hasn’t had any members at all since the end of February. The board is responsible for ensuring the government’s 2.1 million civilian employees are treated fairly and protected from prohibited personnel actions such as wrongful dismissals, whistleblower retaliation, and politically motivated employment actions.

Getting Through Backlog

The board’s career staff estimates it will take at least three years for the MSPB nominees to get through the case backlog once they’re confirmed, Leavitt said.

“That said, it’s incredibly difficult to know just how long it might take. I have no doubt that anyone confirmed to the board would do absolutely everything they could to try and work through the backlog as swiftly as possible, knowing how much both employees and agencies are relying on them for an outcome,” he said.

President Donald Trump‘s three MSPB nominees all have been approved by the Senate Homeland Security and Governmental Affairs Committee and are awaiting a floor confirmation vote.

Tom Devine, legal director at the Washington-based Government Accountability Project, said he “heard through the grapevine” that Sen. Rand Paul (R-Ky.) put a hold on the nominees, which would prevent Senate action.

The senator, if he has put a hold on the nominees, isn’t doing the country any favors, Wiley said.

“Not having a board is bad for America” because disputes between employees and agencies can’t be resolved through the administrative process set forth in law, said Wiley, who represents agencies before the MSPB and trains federal managers on how the board works. The court system is considerably more expensive and more complicated for employees who can’t afford an attorney, he said.

Paul, a libertarian whose views often pit him against both Democrats and Republicans, said before voting against two MSPB nominees in committee Feb. 13 that he doesn’t believe the board should exist at all. His office didn’t respond when asked whether the senator has stalled action on the three board nominees, including one the committee approved by voice vote June 19.

Finishing Out Terms

The nominees will be stepping into existing terms rather than beginning new ones, meaning they won’t be at the board for a full seven-year term even if they’re confirmed, Cannon said.

Julia Akins Clark, Trump’s nominee to be the board’s Democratic member, would step into a term that expires March 1, 2021. Dennis Dean Kirk, Trump’s pick to be the board’s chairman, is taking a term that would expire March 1, 2023, and B. Chad Bungard, who would be the board’s vice chairman, is taking a term that expires March 1, 2025.

This means that the longer the Senate takes to confirm the nominees, the closer they will be to the end of their terms. And if a new president is elected next year, he or she could appoint new board members, which would restart the Senate confirmation process, Cannon said.

“If they lose the election, it’s two Democrats and one Republican” rather than two Republicans and one Democrat. The board can’t consist of three members from the same political party.

“You would think it would be in their interest to get these people confirmed before they turn into pumpkins,” Cannon said.

Lost Faith?

Some of the costs of not having a board in place can’t be measured in dollars, said Kristin Alden, a Washington-based attorney who represents federal workers in employment disputes.

“Faith in the system is the biggest impact. Whether the agency or the employee is right or wrong, you are halting justice” by not providing a forum for resolving disputes, she said.

Nonetheless, there’s no getting around the money involved, Alden said.

“It’s a colossal waste of taxpayer dollars” for federal employees to be idled while huge potential back pay awards pile up, she said.

To contact the reporter on this story: Louis C. LaBrecque in Washington at llabrecque@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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