By John V. Berry, Esq., www.berrylegal.com
Our law firm has represented federal employees at the Merit Systems Protection Board (MPSB) in hearings and appeals for over 20 years. While the initial hearing process remains functioning at the MSPB, we have not had an MSPB Board to hear appeals from initial decisions of administrative judges since January of 2017. It is hard to believe that the MSPB Board has been without a quorum for almost 3 years. Without a Board appeals cannot be heard and justice is effectively denied to federal employees and taxpayers. Furthermore, without a board there is no way for administrative judges to develop a comprehensive policy as to how to implement or understand the President's Executive Orders on personnel matters. This leaves each judge to make determinations for themselves. This has caused significant confusion on key issues before the MSPB. Basically, the U.S. Senate is depriving the President and federal employees of due process and fairness.
Delay Will Cost Taxpayers
This delay also will cause large bills for taxpayers for all federal employees that have been fired wrongfully and who must be provided backpay and benefits for the 3-4 year delay. In fact, some delays may cause taxpayers to pay lost backpay and retirement benefits to some employees in the amounts of $600,000 to $900,000 where their appeal has been delayed 3-4 years. The nominees sitting in the Senate that the President sent to Senator Mitch McConnell include: Dennis Dean Kirk, Republican (nominated March 8, 2018), Julia Akins Clark, Democrat (nominated June 20, 2018) and B. Chad Bungard, Republican (nominated April 25, 2019). The Senate has now recessed until January, 2020 with no desire to finish their work in confirming the MSPB nominees. It is believed that the Senate Majority Leader has decided to ignore President Trump's nominees and leave the President without a functioning Board for the entirety of his first term.
Senate Could Confirm MSPB Nominees in a Few Minutes
It is time that the Senate, who can confirm the President's nominees in a matter of minutes, just do their job. Currently, there are an estimated 3,000 appeals pending before the Board which cannot be heard. Some estimates claim that when a new Board is confirmed it will take a year to clear the backlog of appeals; I highly doubt that. It is likely to take 2.5 years before a new Board can fix the MSPB. It is also estimated that the Board receives approximately 80 new appeals cases a month to be heard which continues to add to the backlog. Assuming that some of the federal employee appeals are victorious, the federal government will be responsible for 3 years of backpay and likely more to employees that have been wrongfully terminated.
Republicans and Democrats are Equally Impacted
This should be a bipartisan issue as Republicans and Democrats are affected equally. The President has done his job in nominating the bipartisan Board members but the U.S. Senate and Senate Majority Leader has yet to take action. It is high time that politics be removed from confirming personnel board nominees.
Conclusion
If a federal employees is in need of legal representation during an MSPB appeal, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook or follow us on Twitter.