No Quorum at the MSPB Since January 2017
With the resignation of Susan Tsui Grundmann at the Merit Systems Protection Board (MSPB or the Board) in January 2017, the MSPB no longer had a quorum. The MSPB only has three members when all positions are filled. With Grundmann’s resignation, only one Board Member, Mark A. Robbins, has been in place.
The MSPB needs at least two of the three Members in place to perform most of the duties of the Board. Absent a Chairman or a Vice Chairman, there is not a quorum at the MSPB and the agency has been unable to decide any adverse action appeals or any other appeals that come before the Board from decisions of Administrative Judges. The cases have been sitting at the Board’s Headquarters in DC waiting for members to be appointed.
While the Board has not been able to issue final decisions on cases requiring a vote, the agency’s administrative judges have continued to issue their opinions. This means that there is now a significant backlog of cases to be decided. The typical case waiting to be decided includes appeals of adverse actions taken against a federal employee by an agency.
Andrew F. Maunz Appointed—But More Nominees Needed Quickly
The good news for appellants taking a case to the MSPB is that on March 5, 2018, Andrew F. Maunz was nominated to become a Member of the Merit Systems Protection Board for a term of seven years. When he is confirmed, he will be designated Vice Chairman of the MSPB.
The announcement of the new appointment from the White House states that Maunz has worked as an attorney in the Office of the General Counsel of the Social Security Administration (SSA) since 2008. And, “[W]hile at SSA, Mr. Maunz has represented the agency in employment litigation before administrative agencies, such as the Merit Systems Protection Board, Equal Employment Opportunity Commission, and Federal Labor Relations Authority, and in Federal court as a Special Assistant U.S. Attorney.”
Andrew Maunz is listed in FedsDataCenter.com as a GS-15 general attorney in Woodlawn, Maryland with an annual salary of $144,945.00. He has advanced fairly quickly. His earliest available salary is from 2010 where he was listed as a GS-13 making $89,033. He was promoted to a GS-15 at a salary of $130,453 in fiscal year 2015.
But, even if Maunz is confirmed quickly, there is another problem looming that could impact appellants taking a case to the MSPB.
The existing term for the current Vice Chairman, Mark Robbins, was appointed by President Obama in December 2011 and he was confirmed by the Senate in April 2012. According to the MSPB, Robbins’ term expired on March 1st. While his term has expired, he is now serving in a one-year statutory carryover year which he is entitled to do in the absence of a replacement having been appointed.
Ripple Impact on MSPB Caseload
The reality is that there will be a ripple effect in the caseload at the MSPB. Even if the Senate quickly moves to confirm the new Vice Chairman, there is now a large backlog of cases pending. As of December 31, 2017, there were approximately 750 cases pending before the Board members, and the number of cases grows each week.
As attorney Matthew B. Tully noted in No Quorum Means No Movement on MSPB Appeals:
This (lack of a quorum) will also have a ripple effect on any future MPSB appeals, since those cases must wait adjudication until the growing backlog of appeals is worked through. In short, this is a mess that won’t be cleaned up anytime soon. One only has to recall the backlog of appeals with the Administrative Judges and the Board when the DoD issued furlough notices to hundreds of thousands of employees causing great numbers of the employees to appeal to the Board to see how clogged the system can get.
Bypassing the MSPB
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. In this case, initial decisions will list administrative and court appeal options.
No doubt, some appellants have exercised this right. This route may be quicker in at least some cases as the legal fees and related expenses of going to court may be substantially more expensive than going before the MSPB. Going to court is also a much tougher route for an appellant who may try to avoid the expense of hiring a lawyer without experience of handling these types of cases in court.
Michael Macomber, a partner at the Tully Rinckey law firm, notes that pro se appellants face a tough road when taking their case to court. The administrative judges at the MSPB are more willing to work with appellants than a court. There are considerable procedural requirements in a court such as the Court of Appeals for the Federal Circuit, and an error in any of the procedural requirements can result in a case being dismissed.
Macomber also cites one piece of good news for those filing an appeal with the MSPB: A large number of the backlogged cases have been prepared for a final decision. While there is now a growing number of cases each week and more than 750 were pending at the end of 2017, once there is a quorum in place, many of these cases sitting at the Board may be voted on by the MSPB Members and decided and issued quickly.
In summary, the appointment of Andrew F. Maunz for a position at the MSPB is good news for those who have a case or who are going to be taking a case to the Board. But, while there is now movement in assembling a quorum, there are issues that remain, and final resolution of many cases will likely take at least a few more months.