JOANNA FRIEDMAN, A PARTNER AT THE FEDERAL PRACTICE GROUP, SPEAKS WITH FEDERAL NEWS NETWORK ON THE IMPACT OF MSPB BUDGET CUTS | The Federal Practice Group


MSPB warns of longer appeals times, more workforce cuts under Trump’s proposed budget cut

April 17, 2019 6:51 pm

 The Merit Systems Protection Board (MSPB) has said the President’s proposed budget cut of 10% next year would have an “immediate and direct negative impact” on the agency’s operations.

The White House 2020 budget request recommended $42.2 million for the agency next year, a $4.6 million cut from the previous year’s funding levels. MSPB in turn has submitted its own “bypass request” to Congress for $46.8 million.

As an independent agency, MSPB can request appropriations directly from Congress. The board has chosen to deviate from the White House and make its own appropriations requests directly to Congress before, but it’s not common, said Jim Eisenmann, a former executive director and general counsel who left the board last fall. He’s currently a federal employment attorney for the Kalijarvi, Chuzi, Newman and Fitch law firm.

Though MSPB has submitted bypass requests before, the agency’s ongoing lack of quorum — and the White House’s relative inaction to fill the board — serves as a backdrop behind the latest justification.

Without a single voting member on the board already, MSPB said it would be forced to cut its workforce if a 10% funding cut went through. It also named eight specific areas where budget cuts would impact the board’s performance, which MSPB said were overshadowed by its current lack of quorum. They include:

  1. Average processing time for initial appeals and petitions for review,
  2. The scope and number of merit system studies it could produce,
  3. Its review of OPM’s significant actions, rules and regulations,
  4. Its ability to conduct outreach,
  5. Evaluation of internal programs,
  6. MSPB’s ability to conduct surveys and support other merit systems studies,
  7. IT modernization efforts, and
  8. The potential relocation of its Washington, D.C., headquarters.

MSPB’s lease at its current location expires at the end of the 2020, Eisenmann said.

In addition, 25 percent of the agency’s employees, including 36 percent of its administrative judges, are eligible to retire in the next two years.

“Budget reductions will result in our inability to back-fill these and other critical vacancies, which will contribute to the slowing of case processing times,” MSPB wrote. “In addition, we will be limited in our ability to provide the outreach and education services that are essential to the effectiveness and efficiency of our adjudication and studies functions.”

The agency last submitted a bypass request for fiscal 2014 and 2015. MSPB’s 2014 proposal reflected a 12% increase over the President’s budget. At the time, MSPB predicted its caseload would skyrocket with additional furlough appeals and other cases from the passage of the Whistleblower Protection Enhancement Act, which Congress approved back in 2012. The agency itself also took a $2 million sequestration cut and lost staff and training, MSPB’s 2014 justification said.

MSPB’s caseload did skyrocket in 2013 with an additional 32,000 appeals, a 525% increase in the agency’s workload.

Congress has been generally amenable to the MSPB’s requests, even if what lawmakers ultimately appropriated didn’t match up dollar for dollar to the agency’s independent proposals.

And House Democrats have already declared this most recent request from the White House “dead on arrival.”

“The language of the bypass request is key,” Eisenmann said of the 2020 request.

MSPB cuts may not seem particularly special; the President’s budget request included a wide variety of significant cutsto other civilian agencies.

But the timing of this proposed funding cut may seem especially glaring given the MSPB’s current situation. It’s been nearly two months since the holdover term for Mark Robbins, the last remaining board member, expired on March 1.

The President named three nominees to fill the board about a year ago. Two of them cleared the Senate committee two weeks before Robbins’ term was set to expire; while the third withdrew his name from consideration. The chairman of the Senate Homeland Security and Governmental Affairs Committee, Ron Johnson (R-Wis.), said he wouldn’t send the two nominees to the floor for a vote until the President had named a third candidate.

To date, the White House hasn’t named a third nominee to fill the board.

Typically, Republican administrations try to fill the board with two Republicans and one Democratic member, and vice versa for Democratic administrations.

Of the Trump administration’s active MSPB nominees, one is Republican and the other is a Democrat.

“I think we’re past that,” Joanna Friedman, a partner at the Federal Practice Group, said of the situation with the nominees. “People have a situation where they require an immediate resolution. Employees are facing situations that impact the terms and conditions of their livelihoods.”

The board itself has lacked a quorum for more than two years, while more than 2,000 petitions for review and other cases have piled up and are awaiting action from MSPB members.

Meanwhile, federal employment attorneys are recommending their clients steer clear of the MSPB if they’re appealing the board’s initial decision.

“I don’t recommend any clients file petitions for review at the board if they’re looking to get any kind of decision in the next three years,” Eisenmann said. “I recommend they go to the Federal Circuit or other appropriate court of appeals.”

Friedman said she’s making the same recommendation. One of her clients has a petition for review that’s been pending before the board since 2015.

The President’s MSPB request gives no reason for the $4.6 million budget cut and makes no mention of the board’s current lack of quorum.

“I don’t know if they’re connected, but the lack of board members or action on board members is just a continued travesty,” Eisenmann said. “If the White House cared about MSPB and wanted to get things moving, it would have had this third nominee already ready to go.”

Other independent agencies with federal employee-focused missions also face budget cuts, though their severity widely differs.

The Office of Personnel Management, as it exists today, would be gone under the Trump administration’s request. The President’s request proposes divvying up OPM’s current functions under the General Services Administration, Defense Department and Executive Office of the President.

Other independent agencies would experience more minor cuts.

The White House requested 1% budget decrease for the Office of Special Counsel in 2020. But OSC said the decrease shouldn’t pose much hardship on the agency. It still has enough funds to hire 11 additional employees due to savings the agency found earlier this year in renegotiating its headquarters lease.

The 11 extra employees will be “necessary to address OSC’s historic levels of new case filings, as well as longstanding backlogs,” the agency wrote in its most recent budget justification. “With this level of funding, OSC can resolve the bulk of its upcoming cases in the statutorily-required processing timeframes, receive significant favorable actions and results and begin to reduce its case backlog to moderate levels.”

By the end of 2018, OSC received 4,168 new prohibited personnel practice complaints. Its backlog stood at 2,607 matters. Both figures are record highs for the agency.

The Federal Labor Relations Authority stands to lose about $1 million under the President’s budget request. The agency has lost about 11 employees through recent closures of FLRA regional offices in 2018.

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Nicole Ogrysko is a reporter for Federal News Network focusing on the federal workforce and federal pay and benefits. Follow @nogryskoWFED