In restoring a quorum, new MSPB nominees face 4-digit backlog

The Merit Systems Protection Board (MSPB) is finally on its way to restoring a long-awaited quorum.

The Senate Homeland Security and Governmental Affairs Committee on Thursday heard from the president’s three nominees — Dennis Kirk, Julia Clark and Andrew Maunz —to serve as members on the board.

The nominees easily sailed through their nomination hearing, but they’ll face a much more difficult task if they’re confirmed — a backlog of 1,200-to-1,300 pending cases.

The backlog has been building since January 2017, when former Chairman Susan Tsui Grundmann left MSPB, leaving Mark Robbins as the lone board member. He’s been voting on cases that come his way — typically the petitions for review that require a board vote over a decision from an administrative judge — for more than a year-and-a-half.

Robbins’ votes have been put aside until a new board member could join him and issue his or her own decision. But because the Senate is considering three new MSPB nominees, Robbins’ pending votes will fall by the wayside as the new members issue their own decisions on those pending cases.

MSPB has lacked a quorum before in its history, but today’s absence is the longest since the agency’s inception in 1979, a point that wasn’t lost on Senate committee members and the nominees.

“I worry that this lack of urgency to have a quorum has already had negative impacts on whistleblowers and sends a message to potential whistleblowers that their protection is not a priority,” Sen. Maggie Hassan (D-N.H.) told the nominees.

The nominees said they would meet with MSPB career staff to review the cases as soon as they take office — and possibly put a priority on whistleblower appeals.

“Whistleblowers … deserve our full attention [and] protection,” said Kirk, the president’s nominee for MSPB chairman. “The fact that they can’t get justice right now is the elephant in the room.”

Regulatory Affairs and Federal Management Subcommittee Chairman James Lankford (R-Okla.) said he wants the new board members to move quickly, but not too quickly, to eliminate the backlog.

“The backlog is untenable for the federal worker at this point and it has to be resolved, but it has to be resolved fairly,” Lankford said. “What I need to hear from you is this group is not going to feel the obligation to hurry and not give a full hearing to the cases coming before them. You’re going to feel the pressure of getting 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.”

Kirk, who previously served as the Army’s first associate general counsel for strategic innovation and business transformation, has experience finding process improvements and resolving lengthy backlogs. He said he’d consider adding administrative law judges and personnel from other agencies to help the members work through the case backlog.

Resolving the backlog quickly is more important now, as MSPB’s workload may grow in the future.

“You have to think outside the box,” Kirk said. “The old ways of doing things won’t cut it. We have a huge problem coming up. As you’re probably aware, there may be some changes coming in the federal government. If that happens, there may be [reductions in force], furloughs [and] firings. We have to deal with that.”

All three nominees expressed a similar respect and admiration for merit principles, which MSPB is responsible for upholding.

Though no nominee wanted to comment on possible and upcoming changes to the current civil service system, all three have experience working for a federal agency at some point in their careers, and they praised the existence of merit system principles.

Maunz, who worked as an attorney for the Social Security Administration, described those principles as the foundation for the federal government.

Clark, who has served as Federal Labor Relations Authority general counsel and has experience as a federal manager, said she found she could use the civil service system to discipline and reward her employees.

“I found the tools at my disposal in the civil service to be adequate and practical, and I was able to hold employees accountable for a range of performance and conduct issues without an issue,” she said.

Kirk called the merit principles “sacrosanct” and said there would be chaos without them.

“We value our fire protectors, our police [and] our military,” he said. “But the people don’t understand what gets delivered to them every day is from a federal employee. That federal employee goes to work, works his or her heart out and comes home to the family. Every day they have a tough job. They go and do what we have to have done, and we just can’t say there’s no merit to their business. They are our business.”

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