A federal employment attorney assesses the impact of having a Merit Systems Protection Board

Linda D. Garrow

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After two years of total vacancy, the Merit Systems Protection Board now has two of its three members, enough to make decisions that stick. The board is where feds who feel they were wrongly sanctioned can appeal decisions of administrative judges. For another view of the practical effect of the board’s re-establishment federal employment, attorney Stephanie Rapp-Tully, a partner at Tully Rinckey spoke to the Federal Drive with Tom Temin.

Tom Temin: Ms. Rapp-Tully, good to have you on.

Stephanie Rapp-Tully: Thank you so much for having me, good to be here.

Tom Temin: What do you think the effect will be on federal employment? Because basically, the MSPB is where everybody that’s not in a union goes for redress here, if they don’t like something that happened to them. But what’s your sense of how this will change things?

Stephanie Rapp-Tully: Well, there are a couple of big item cases that need to be decided. Lucia cases that have been causing problems at the board for quite some time. Basically, certain agencies found that administrative judges were not properly appointed. And so the board will have to very quickly probably make a decision on those cases, because a lot of cases, several 100 cases, I believe, have been held up waiting for that decision.

Tom Temin: Well, let’s go into that for a second. That is to say, the decisions rendered by the administrative judges, and they’re not administrative law judges, they’re just administrative judges at the MSPB. And I guess there’s a difference there. Tell us the background here. Who says they weren’t properly appointed? And what is the effect of that on the decisions they did make?

Stephanie Rapp-Tully: Well, it comes down from a Supreme Court case, Lucia v. Securities and Exchange Commission from the Supreme Court, which basically found that administrative law judges at an agency were officers of the United States and exercise significant authority, and therefore were subject to appointments clause of the United States Constitution. It is unclear whether MSPB judges would fall under that definition. But several agencies have made it a point to make this challenge. A lot of us in the practice think it’s just a way to kick the bucket down the road. But it is a challenge that needs to be decided upon by the board. And it hasn’t been able to be decided without a quorum. So that I think will be a big ticket item as the board ramps up. I mean, I’m sure they’re looking at it now, that they’re in their jobs now. So I imagine that’s one of the big things that they’re looking at first.

Tom Temin: Got it. So if these judges are determined to have not been appointed properly, that means whatever decisions those judges made would be moot?

Stephanie Rapp-Tully: So a lot of these cases are being what’s called DWOP’ed: dismissed without prejudice. So they’ve been pushed to basically limbo, waiting for a determination and then to have the judge properly appointed. I mean, the board can fix this by properly appointing their judges, if whatever that may be, based on their review. But basically, agencies have just been putting things on delay until this decision can be made. And it’s not uniform. It is not all agencies doing this. And it is not even all cases at a particular agency. It is not at all uniform. It’s kind of sporadic, that agencies are making these objections.

Tom Temin: But if any of them are making the objections, then the board has to solve that issue for everybody. Even if it’s just a few making that objection. What would they have to do if they decide well, they weren’t properly appointed? How do you fix that?

Stephanie Rapp-Tully: Properly, appoint them? Whatever that is, whatever is a proper appointment, they’ve talked about changing the title of judges to officers of the United States, to different things to work within those definitions, but the cure is to properly appoint them.

Tom Temin: But that could be remedied within the board operation itself. And it wouldn’t require Congress, for example, or they’re not White House appointees or that kind of thing, the judges.

Stephanie Rapp-Tully: Potentially. I mean, if they are subject to the appointments clause of the United States Constitution, there may have to be some involvement. I don’t think it’ll get to the point of, like Article III judges and having to go through those types of appointments. And I don’t think anyone makes, I hope no one makes that argument. But maybe there’s something that’s subject to –

Tom Temin: Sure. Yeah, if that was the case, then you’d have no judges and a board instead of all judges and no board.

Stephanie Rapp-Tully: Right, exactly.That’s not better.

Tom Temin: We’re speaking with Stephanie Rapp-Tully, she’s a partner at the law firm Tully Rinckey. All right, so go on then with what then let’s assume we’re passed that. What are some of the other practical effects here? That would clear out a lot of cases once that’s resolved.

Stephanie Rapp-Tully: Sure, they still need to deal with the roughly 3,600 cases in backlog for petitions for review. But in terms of normal case processing, like if someone were to get removed tomorrow and want to file with the board, there is still going to be a delay. If they get all the way through a hearing and want to file a petition for review. There will be a delay in getting that petition for review adjudicated because there is this backlog. But at least it’s moving now. For the past five years, we haven’t been moving at all. So employees filing today might see a faster turnaround than employees that filed potentially three years ago.

Tom Temin: Right. So it’s up to the board then to figure out how they did I suppose of those cases, and there’s a lot of filters they could use to decide which of that stack, they get to first.

Stephanie Rapp-Tully: Yeah, there’s a number of different ways they could do it, first-in-first-out kind of an idea, which I think in a lot of respects, unless there’s, like Lucia cases which I think will be a priority. But beyond that, I think that they should go in chronological order, get cases from 2013 out before they do cases from 2018. But there’s a number of different ways to approach it, right, you could look at what are the easier cases to adjudicate and get those done very quickly. And then save the more complicated cases for later. Or reverse that, you could do the more complicated cases first, and then have the more simple cases at the end. There’s a number of different ways that they could approach this. It’s ultimately going to be up to the board on how they divide and conquer here.

Tom Temin: All right. And let me ask you this, the one remaining judge who was there all by his lonesome for a long time there did render an opinion on a lot of those cases that came in before he left. Do those have any value at all, other than as guidance to the new board members?

Stephanie Rapp-Tully: I think it’s just that. Whether they adopt his decisions, because you need a quorum to make a decision so even though he provided, his judgment on it, you need to have the two people. So I think it’s exactly that. It’s guidance, it’s his impression of it, whether they choose to follow his findings or make their own. I don’t know if there’s really precedent for that. I don’t think they have to go with his judgments, although that would seem to make the most sense. And I think you’re referring to Mr. [Mark] Robbins. He’s been at the board for incredibly long time, and so has Mr. [Tristan] Leavitt. So I believe that there will probably be some understanding of what they need to do, just based on both of those two individuals’ experience at the board. Mr. Leavitt being there when Mr. Robbins was there I think that will help.

Tom Temin: And what do you think the board members should do that are arriving, Mr. [Raymond] Limon, and Tristan Leavitt. When they get there they will have this staff of judges to deal with too besides, everyone’s concentrating on the backlog of the appeals. But somehow they have to, I would think, then you can tell me what you think, establish the normal sense of operation of how this whole thing should be, which it has not had for five years.

Stephanie Rapp-Tully: Yeah, I think there will be a certain amount of change of command, kind of, of an environment. Now, Mr. Leavitt, like I said, has already been at the board. He was General Counsel. So he knows how the board operates. He’s been there for some time. And he’s been acting as the board’s general counsel, so he’ll have a good idea. Mr. Limon, of course, has never been at the board. So how the two of them decide, there likely will be a change of command day, “This is how we’re going to run things,” or “We’ve been noticing in cases these these issues. This is how you need to be done.” I’m sure that those conversations will be occurring. I don’t know that we’ll ever get to know about them but they will, I’m sure they’ll occur.

Tom Temin: I wonder and I’m just imagining this knowing he was appointed and how long it’s been for these appointments. And being on the staff there. I wonder if Mr. Leavitt might have maybe just snuck into the room where those cases are, and read a few of them a day and made a quiet crib note as to what his decision would be. So that he can say, well, I’m already through them on day one after they actually seat themselves. Is that just my imagination?

Stephanie Rapp-Tully: That would be fantastic. I would hope, yeah like I said, he has significant experience at the board. I would imagine he had coming into this already a plan. If Cathy Harris is confirmed, I’m sure she’ll come in with the same, need to get down, figure things out. But I bet both Cathy Harris and Mr. Limon rely on Mr. Leavitt quite a bit in terms of his expertise at the board, and already understanding the structure and the organization internally.

Tom Temin: And as a lawyer and as a firm that represents federal employees in disputes over adverse employment actions, would you then recommend people now go ahead and make their claim to the board, knowing that it’s more or less fully functioning now?

Stephanie Rapp-Tully: Well, sure, primarily, because those timelines don’t run very long. So if when you’ve been terminated, you only have a certain number of days before you lose your right to file at the board. You’re a whistleblower, you have to do a few things, but you only have a certain amount of time you can file. People need to continue to be filed because the cases are still being litigated and adjudicated through judges. I mean, I have several handful of active MSPB cases right now. It’s just when you get to that PFR level that cases have stopped. But a petition for review is not the only way to deal with a negative or a bad decision. Of course, you can also appeal to the Federal Circuit as well. So employees should be following those deadlines and making sure that they preserve their rights regardless of the situation with the board.

Tom Temin: Stephanie Rapp-Tully is a partner at the law firm Tully Rinckey. Thanks so much for joining me.

Stephanie Rapp-Tully: Thank you so much for having me.

A federal employment attorney assesses the impact of having a Merit Systems Protection Board

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