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Bypassing Memberless Federal Personnel Board Is Doable for Some

Dec. 11, 2019, 6:33 PM

Federal workers looking to challenge removals, suspensions, or other adverse actions face a tough choice: go to an appeals board that’s been without a quorum for almost three years and wait for a decision, or go to court despite the potential expense.

The Merit Systems Protection Board, with three members at full strength, hasn’t had a two-member quorum since January 2017 or any members at all since the end of February. As a result, it can’t hear appeals of initial decisions from MSPB administrative judges in cases alleging whistleblower retaliation, discrimination, nepotism, or other prohibited personnel practices.

The board’s backlog as of Nov. 30 reached about 2,480 cases, said MSPB Acting Executive Director William Spencer. In addition to waiting for the Senate to confirm at least two of President Donald Trump’s three MSPB nominees, those seeking board action will have to wait for the new members to wade through the backlog.

“We recommend going to the federal courts rather than appealing to the MSPB where there is clear legal error by an administrative judge,” said Cheri Cannon, a partner at Tully Rinckey who previously was chief counsel to the MSPB chairman.

An example would be an AJ dismissing an employee’s case based on an erroneous timeliness finding, Cannon said. In a recent case, “we showed the court a calendar” with the relevant dates and the court quickly agreed that the timeliness finding was incorrect, she said. As a result, the client didn’t have to wait for the MSPB to rule on the issue.

The case backlog, which will result in millions in back pay going to appellants who prevail, and the continued lack of board members leaves the government’s 2.1 million federal workers without their most obvious option for appealing decisions by MSPB administrative judges. Agency operations and workers’ lives can be upended when personnel disputes aren’t resolved, according to former MSPB Acting Chairman Mark Robbins.

Whistleblowers are among those hit hardest when the board that hears federal employees’ personnel appeals has no members, Robbins told a House panel on his last day at the MSPB on Feb. 28.

Credibility Issues a Nonstarter

If a case doesn’t involve clear error by an administrative judge or the possibility of making new law, Cannon said, an appellant’s chances of successfully bypassing the board are significantly reduced.

Appealing AJ rulings based on credibility issues involving witnesses—for example, where an AJ found a supervisor’s testimony to be credible even though it conflicted with an employee’s version of events—is a heavy lift for appellants interested in going to the courts, Cannon said. Courts generally won’t overturn these kinds of rulings, she said.

Courts also have “very demanding rules” that make it harder for people to represent themselves, as many people do before the board, Cannon said. It’s “outrageously expensive” to pursue a claim in federal court, which makes attorneys reluctant to handle cases that don’t have a strong chance for success, she said.

A petition for review at the board can cost $7,500 to $10,000 depending on the complexity of the appeal, compared with “upwards of $20,000" for most court appeals and considerably more for complicated cases, Cannon said.

“There’s a very small population that can do this, and we’re very picky” about taking these kinds of cases, Cannon said.

The cost of hiring an attorney is “very fact- and case-specific,” making it difficult to generalize about expenses, said Kristin Alden, a Washington-based attorney who represents federal workers in employment disputes.

“The only thing I can tell you is that the employee is able to recover attorney fees incurred, if the employee’s appeal is successful,” she said.

‘Stuck With No Way Out’

Most federal workers who want to appeal initial decisions from AJs to the courts rather than the board bring their cases to the U.S. Court of Appeals for the Federal Circuit. But for “mixed cases” involving alleged discrimination, MSPB appellants can go to a federal district court with jurisdiction, said Alden.

Federal employees with whistleblower claims where an AJ has ruled against them also have other options such as filing with any appeals court with jurisdiction, she said.

It’s a different story if the agency rather than the worker is appealing an administrative judge ruling, Alden said.

“If you won your case before the AJ, and if the agency files a petition for review with the MSPB, there is nothing the appellant can do. They are stuck with no way out and no way to expedite,” 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: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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