Lack of a quorum due to vacancies on the Merit Systems Protection Board (MSPB) have left hundreds of federal employees with pending cases in limbo and an unknown number of others considering appeals wondering what to do.
The backlog of cases pending before board members stood at 750 at the end of 2017 and “the number of cases grows each week,” according to the MSPB 2017 annual report. “This is the largest inventory of cases at headquarters awaiting member action in our history,” the report states.
Employees with pending cases before the MSPB have no choice but to wait for the quorum to review their appeal. Those with new appeals may file one, but should expect a long wait while the board gets through the backlog and other cases awaiting review.
A petition for review (PFR) may be filed in cases appealing MSPB Initial Decisions. The PFR must state objections to the Initial Decision that are supported by references to applicable laws or regulations and by specific references to the record.
An employee may also file a petition in the U.S. Court of Appeals for the Federal Circuit, however, this can be costly, complicated and onerous. Cases involving allegations of discrimination may be appealed to the Equal Employment Opportunity Commission or a U.S. District Court.
Filling the vacancies
Although President Donald Trump has made nominations to fill the vacancies, no decisions can be issued until the appointments are confirmed by the Senate. Cases have been piling up since Susan Tsui Grundmann resigned in January 2017, leaving Mark A. Robbins as the only member of the board.
Robbins can perform administrative and executive functions, but may not make any decisions regarding PFRs of decisions made by regional administrative judges without a quorum.
On March 8, Trump announced the nomination of Republicans Dennis Dean Kirk as MSPB chair and Andrew F. Maunz as vice chair, which would allow Robbins to depart before his one-year carryover ends March 1, 2019. There is still the need for a Democrat, who would serve as member.
The Senate must hold committee hearings before Maunz and Kirk’s names come to the floor for a vote, and when or whether Kirk and Maunz will be confirmed remains to be seen.
Employees with questions should contact a federal employment attorney to discuss the merits of utilizing PFR versus appealing through the Federal Circuit.