No Quorum at MSPB Will Halt Decisions on Federal Employee Petitions

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By on January 5, 2017 in Agency News with 0 Comments

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Merit Systems Protection Board (MSPB or Board) Chairman Susan Tsui Grundmann is resigning. She was confirmed by the Senate in 2009 and is departing the Board effective January 7, 2017.  Her term expired on March 1, 2016. She is serving in a holdover capacity.

In addition, the Vice Chairman position is still vacant and has been since March 2015. This means Board Member Mark A. Robbins, who was confirmed in 2012, is authorized to perform the administrative and executive functions of the MSPB.

No Quorum for Issuing Decisions at the MSPB

There is already an existing vacancy on the Board. Chairman Grundmann’s departure means there will not be a quorum at the MSPB. The agency will be unable to act on any petition for review filed until a quorum is restored. This will require a nomination and confirmation of at least one new member. It also means the agency cannot issue its study reports on the civil service.

Deadlines for Filing Remain the Same

What if a federal employee wants to file a petition for review with the MSPB? Can this still be done?

A petition can still be filed. One should not, however, assume the lack of a quorum changes applicable deadlines. Although there will not be a quorum, all deadlines for filing petitions for review remain the same according to the MSPB.

Administrative judges will continue to hear appeals and issue initial decisions as usual.

If neither party files a petition for review of an initial decision, an appellant who receives an initial decision may exercise his or her right to appeal directly to the U.S. Court of Appeals for the Federal Circuit, another U.S. court of appeals, or a U.S. district court, as appropriate.

Initial decisions will list the various administrative and court appeal options. All deadlines for filing court appeals remain the same.

Impact on Actions by the MSPB

Because a request to withdraw a petition for review requires a Board decision, these decisions must be made by a majority vote of the Board. In other words, the MSPB cannot rule on a request to withdraw a petition for review until a quorum is present.

A request for the stay of a personnel action by the Office of Special Counsel can be granted or denied for a 45-calendar day. This means the remaining Board Member can continue to issue initial stay requests of 45 calendar days. Note that a quorum must be present for the Board to consider the Special Counsel’s request for an extension of an initial stay request.

If neither party files a petition for review of an initial decision, an appellant who receives an initial decision may exercise the right to appeal directly to the appropriate court. Initial decisions will list administrative and court appeal options. All deadlines for filing court appeals remain the same.

Need More Information?

Current or potential appellants to the MSPB should not make a guess about their options in order to avoid damaging their case. For further information, the MSPB advises contacting the Office of the Clerk of the Board via email to mspb@mspb.gov or via phone at 202-653-7200.

© 2017 Ralph R. Smith. All rights reserved. This article may not be reproduced without express written consent from Ralph R. Smith.

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About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources.

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