MSPB does not have a quorum.
Federal employees looking to appeal adverse personnel decisions up the chain will soon have a decision to make: pay up or wait -- indefinitely.
The Merit Systems Protection Board lost a functioning central panel this week, with just one Senate-confirmed member still remaining. The resignation of the board's Chairman Susan Tsui Grundmann left it without a quorum, which requires at least two of the board’s three positions to be filled. Currently, Mark Robbins -- confirmed to his board position in 2012 -- is the only remaining member.
While Robbins can perform administrative and executive functions, he cannot act on any petitions for reviews on decisions made by regional administrative judges. Rulings sent for further appeal to MSPB’s central board require a quorum for a ruling. About 10 percent of regional decisions are generally appealed to the Senate-confirmed, Washington, D.C.-based board.
Regional MSPB outposts around the country will continue to function normally, the agency said in an announcement Wednesday. Federal employees looking to appeal rulings made at that level to the central board can continue to do so, and their cases will be considered upon the restoration of a quorum. Appellants would have to wait indefinitely to have their case reviewed, and even then face additional delays as the new board members sort through the case backlog.
Alternatively, federal employees could skip the middle step and take their case directly from the regional level to the Federal Circuit. That process, however, can be costly and time consuming.
“The federal circuit is a very time intensive court with very strict requirements,” said Michael Macomber, a federal employment attorney with the law firm Tully Rinckey. Employees will now have to “weigh the pros and cons” of waiting indefinitely to have their case heard versus paying to navigate the federal court system.
“It’s going to change strategically how employees handle their cases,” Macomber said. Employees challenging a minor disciplinary action, for example, may have more flexibility on the timing of their cases compared to someone who has been fired.
“This is going to be, for lack of a better word, a problem for quite some time,” Macomber said.
As the Trump administration takes office, it remains to be seen to what extent it will prioritize filling the vacancy; the president-elect must fill more than 4,000 political appointments, including about 1,100 that will require Senate confirmation. Some lawmakers may appreciate MSPB’s lack of a quorum. The 2014 Veterans Access, Choice and Accountability Act stripped the Veterans Affairs Department’s Senior Executive Service employees of their appeal rights before the Senate-confirmed bill, and congressional Republicans have since sought to expand the provision to others in government. The law has since run into concerns over its constitutionality.
Federal employees facing disciplinary action or claiming whistleblower retaliation can appeal personnel decisions through MSPB, as can veterans with claims through the Uniformed Services Employment and Reemployment Rights Act.
MSPB is the second agency in recent years crippled by a lack of a quorum on its governing board; the U.S. Postal Service’s Board of Governors has been without one since 2014. In December, USPS lost its final Senate-confirmed governor and all of its nine slots are now vacant. Only the postmaster general and her deputy, who also sit on the board, are remaining to make operational decisions for the agency.