What a New MSPB Board Member Nominee Should Know

By William Wiley, January 30, 2018

Finally, after all those political donations and fund raisers, your name pops up as a candidate for a political appointment in the current administration. When you get The Call from White House personnel, your little heart starts to flutter. Will it be the ambassadorship to Ireland? The Under Secretary of State assigned to Europe, Japan, and (interestingly) Honolulu? Or, maybe you’re going to be asked if you’d like to be on the short list for the next vacancy at the Supreme Court. You can hardly wait to find out what they’re considering you for. Your mom has the hometown newspaper holding a space on Page One for the big news.

And then the shoe drops. The President is thinking you’d be of great service as a member of the MSPB. There goes the front-page article. Having no idea what those initials stand for, you quickly Google for more information while you’re telling the caller how honored you are and how you’ve always dreamed of serving the President in his still-new administration. Trying to find out what you might be getting yourself into, you hastily type into the browser’s search field www.mspb.gov. And suddenly you come to believe that you are going to be appointed to a mental hospital located just south of Bordeaux, France.

Fortunately, you soon see your error. The correct site is www.mspb.gov. Whew. Learning French was going to be hard, especially those medical terms.

OK, so you’re being nominated to be a Board member. And after a bit of reading, you find out that this is what a Board member’s life is like:

1. The Board’s judges do the heavy lifting by conducting a hearing, weighing the evidence, then issuing an “Initial Decision” resolving the appeal of some poor fired civil servant or some other matter within MSPB’s jurisdiction.
2. When an appeal of the judge’s decision is filed with the Board members, the case is worked by the career staff at HQ, then forwarded to the three Board members for their consideration of a draft decision.
   • If a member agrees with the career staff’s recommendation, he signs his name as adopting.
   • If a member disagrees with the career staff’s recommendation, he drafts a memo to his two colleagues about why he is disagreeing and arguing for a different outcome and a rewritten decision.
   • The other two members then review the appeal file and can either a) concur with the staff’s recommendation, b) concur with the other member’s proposed rewrite, or c) come up with their own proposal for rewrite.
3. The case then circulates among the three members until at least two of them agree as to how the decision should be written.
   • If there is agreement that the staff’s recommendation is correct, the members sign a vote sheet indicating their agreement, and within a day or two the recommended decision is issued as the Board’s final opinion and order.
   • If there is agreement that the staff’s recommendation is incorrect, the case is returned to the staff for a rewrite.
   • When the rewritten decision is forwarded to the three members, it’s subject to the same rotation for voting and argument as before, although it’s unlikely much argument will happen as the members have already spoken as to the outcome they will adopt.
4. If all three members agree, the final decision is issued after the original or rewritten opinion and order is adopted by all three members.
   • However, if one of the members disagrees with the other two, that member is given the opportunity to write a dissenting opinion.
   • Then that Dissent is circulated to the other two members to give them an opportunity to respond to the Dissent in the Majority Opinion.
   • Then the dissenting member is given an opportunity to respond to the changes made to the Majority Opinion by modifying the Dissent.
   • And thus, the case goes ’round and ’round until all three members have said all they want to say, and then the final opinion and order is issued.

While you’re on hold with the White House, waiting to talk directly to the President and accept the honor of a nomination to be a Board member, you think about this work that you’ll be doing. You moved paper before, thought about things, and made hard legal decisions. You can do this. When, you retrieve the Board’s annual report, you realize that about five appeals enter the Board every workday. That means that on your end, you’ll have to vote a final decision out on five cases a day to stay even with the incoming workload. OK, that’s a lot of adjudicating to do. But you’re a can-do sort of person, and by really leaning in, eating lunch at your desk, and forgoing long vacations, you can make this happen.

And then you read the FELTG newsletter. There you find out that because the Board has lacked a quorum for over a year, your caseload is not five decisions a day to adjudicate, but 800 pending appeals PLUS five new ones that come in every day.

The automated announcement on the phone says that you’re now being taken off hold:

President Trump: “Hello, this is the President. I’m delighted that you’ve agreed to take a position in my administration!”

You:  CLICK.

Lordy, we hope that somebody out there will accept an appointment to be a Board member given the current situation. Perhaps someone with no family, no friends, and a fondness for working indefinitely beyond the point of mental and physical exhaustion. Our country will be forever grateful.

However, if you do get The Call, we couldn’t blame you one bit if you took a pass. Life’s short. It’s so much more fun casually reading the FELTG Newsletter and going early to happy hours than reviewing all those old boring legal briefs that will be shoved at you.

But if you do take The Call, don’t say we didn’t warn you. Wiley@FELTG.com