Federal Employment Update: Federal Employees Continue to Wait in Administrative Employment Limbo Due to MSPB Vacancies

Article At A Glance:

– What is the impact of the United States Merit Systems Protection Board’s (MSPB) lack of a quorum for over four years?

– Federal employees who receive an adverse action decision—including removal, demotion, and suspension of greater than 14 days—can appeal the decision to the United States Merit Systems Protection Board (MSPB).

-The MSPB has lacked a quorum since January 2017 and has not had a single board member for over two years.

-A quorum is the minimum number of MSPB members to make their decisions valid.

– Due to the lack of a quorum, beginning January 2017, the MSPB has been unable to issue final decisions on petitions for review.

– Federal employees who have filed petitions for review must wait until a quorum is restored for a final decision on their case, thus leaving them without recourse. They have been waiting in limbo without relief.

– The MSPB will have to address the overwhelming backlog of pending petitions for review once a quorum is restored, which could take several more years to resolve.

– President Joe Biden nominated two Board members who are awaiting Senate confirmation, and the quorum will be restored if both are confirmed.

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Federal employees who receive an adverse action decision—including removal, demotion, and suspension of greater than 14 days—can appeal the decision to the United States Merit Systems Protection Board (MSPB). Administrative judges issue initial decisions, which a party can then petition for review to the full board. The MSPB has lacked a quorum since January 2017 and has not had a single board member for over two years. A quorum is the minimum number of MSPB members to make their decisions valid. Without a quorum, the MSPB cannot issue final decisions on petitions for review. So, parties appealing to the MSPB must wait for a final decision in their case until after a quorum is restored through presidential nomination and Senate confirmation of at least two Board members.

The backlog of pending petitions for review deeply harm both federal employees and federal agencies. Federal employees’ wait times will continue even after a quorum is restored, because of an overwhelming backlog of more than 3,000 outstanding petitions for review. Also, once a quorum is restored, federal agencies may owe substantial sums in back pay to federal employees who the MSPB determines are due such damages. The personal costs to federal employees and the financial costs to agencies increase as the MSPB goes longer without a quorum.

Administrative judges and MSBP attorneys have continued operations despite the lack of a quorum over the past several years. MSPB attorneys have reviewed and drafted decisions on the pending petitions for review, which may shorten the time it takes for the MSPB to issue a final decision. The new Board members may also decide to issue short-form decisions in certain cases, excluding the Board’s analysis and summary of the arguments, to get these decisions out faster. It is also possible that the new Chair of the MSPB may use a different approach, such as issuing final decisions on all whistleblower cases first, instead of issuing decisions in chronological order.

Luckily, there has been some recent movement with the MSPB issue. President Joe Biden nominated Cathy Ann Harris as the Chair of the MSPB in April 2021, and Raymond Limon as the Vice Chair of the MSPB as recently as June 24, 2021. A quorum can be restored if the Senate confirms these two Board members, regardless of whether there is a third nominee or confirmation. The Senate often considers the three nominees as a package, however, and may wait to see the third nominee before considering all.

Contact Lipp Law Attorney Sarah Mugmon, Esq. to Discuss Your Federal Employment Matter.