In January of this year, MSPB hit a dubious milestone – the three, yes three, year mark without a quorum.
Since January of 2017, MSPB has been prevented from issuing final decisions in petitions for review filed by federal employees and agencies when they dispute an initial decision from an administrative judge.
The backlog is now in excess of 2,500 cases. According to the MSPB 2019 Annual Report, MSPB Administrative Judges in the regional and field offices issued decisions in 4,893 initial appeals last year, which will undoubtedly add to the pile in Washington.
The three Members nominated by President Trump – Chad Bungard, Dennis Kirk, and Julia Clark – have made it through the Senate Homeland and Governmental Affairs Committee, and are awaiting approval by the Senate. Until that happens, no final decisions can be issued by MSPB.
Options for Federal Employees
So, what options do you have to move your case along?
If you are stuck at the Board waiting on an appeal you filed, you can do nothing and wait for the Board to have a quorum and rule, or you may take the case away from the Board and go to the Federal Circuit.
On May 11, 2018, MSPB announced a policy change which allows a petitioner to withdraw his or her petition if “there is no apparent untimeliness of the [original petition]” and the opposing party does not object. If the Board grants a request to withdraw a petition, the order granting the request will be considered the final order of the Board, which can be appealed to the Federal Circuit.
However, there are downsides to taking your case to the Federal Circuit.
First, an appeal to the Federal Circuit is invariably more expensive than one to the MSPB as you would need, but are not required, to hire counsel. While the MSPB process is informal and can be navigated by a pro se appellant, the Federal Court procedural and substantive rules are more rigid, and are generally enforced by Judges equally, without consideration that a party is representing oneself.
Second, if your case is based upon findings of fact and/or witness credibility determinations by the Administrative Judge, the Court of Appeals is generally not a favorable forum. However, if the case involves a purely legal issue, such as the misinterpretation of a statute or regulation by the AJ, the Federal Circuit could be the right place for you.
Unfortunately, petitioners are faced with making the “Hobson’s choice” of waiting for an MSPB quorum, or withdrawing their petition and going to Federal Court. Before making the decision, consulting legal counsel is highly recommended.