It’s been a little over a year and a half since the three-member Merit Systems Protection Board (MSPB) has had a quorum after a record-setting five years without. While this is great news for federal employees who have been waiting patiently for years for an MSPB petition for review, questions still remain as to when the Board expects to be through the case backlog they inherited and when current federal employees can expect their cases to be addressed.
While difficult to say for certain, the Board has been vocal about their progress, and employees with cases should continue to monitor the situation for new updates to their cases should they not have heard anything since the Board restored quorum.
A Quick Recap and Current Status of the Board
From January 2017 to March 2022, the MSPB did not have a quorum of members and could not vote on any petitions for review. The quorum was restored on March 4, 2022, when Members Raymond Limon and Tristan Leavitt were sworn in as members of the Board after being confirmed by the Senate on March 1, 2022. Acting Chairman Cathy Harris was sworn in on June 1, 2022, after being confirmed by the Senate on May 25, 2022.
Member Leavitt left the Board after his term expired on February 28, 2023. The Board has two members as of March 1, 2023: Acting Chairman Harris and Member Limon. A quorum of two members exists, and the Board has continued to make decisions.
President Biden announced his intention to nominate Henry J. Kerner to the Merit Systems Protection Board on July 3, 2023. On July 11, 2023, Mr. Kerner’s nomination was sent to the Senate.
What was the Impact of the Lack of a Quorum and How is the Board Handling the Case Backlog?
The MSPB, whose goal is to promote an effective federal workforce, was unable to hold a quorum for the last five years due to not having enough members on the council. This created increased financial strain and anxiety for those in the backlog of cases.
During this time, MSPB administrative judges could still make initial decisions (ID) on appeals. After an ID is issued, the parties involved have to decide whether they agree with this decision. If they do not, they can file a petition for review (PFR), which then goes to the Board for a final decision.
Since the restoration of a quorum of members, the Board has been expeditiously issuing final decisions on the petitions for review and other cases pending before it. It’s estimated that the Board inherited around 3,800 pending cases for review.
The Board’s initial strategy to tackle the case backlog was to focus on cases that the Board deemed most critical, including precedential decisions or decisions that could affect many pending cases, decisions dismissing cases as settled, and many of the oldest cases then pending. Since the quorum was restored, the Board has made rulings on over 1,750 cases.
In the previous fiscal year—Fiscal Year 2023 (Oct. 2022 to Sept. 2023)—the Board also committed to issuing decisions for a majority of the 1,000 eldest cases that were filed with the board prior to December 2017.
As for the remaining cases, the Board has since stated in their most updated FAQ—along with providing the prior cases backlog statistics—that they will “continue to exercise their discretion to decide cases in a way that balances advancement of legal doctrines, efficiency in case processing, and other considerations inherent to adjudicatory decision making.”
How Quickly Can Federal Employees Expect Their Cases to be Addressed?
As previously mentioned, the Board has been fervently clearing through the case backlog as quickly as they can to try and grant some relief to federal employees suffering from unjust adverse disciplinary actions. However, it still may take years for the MSPB to clear through the backlog.
Even with a quorum, the pending case backlog still poses a threat to one of the main avenues federal employees have to combat improper agency actions. Many of the whistleblowers who have their cases pending could be out of a job and facing financial difficulties or, even if still employed, suffering psychological or emotional hardship. Stress on the whistleblower and appellant is further compounded by the delay as evidence becomes stale and witnesses forget critical testimony. Further, potential whistleblowers may be discouraged from exposing abuse or misconduct due to the length of time it may take for their case to finally be determined.
However, despite the case backlog, you can and should still consider filing an MSPB appeal if you have suffered unjust treatment while working as a federal employee. While it is currently unclear how long cases will take to be processed and to achieve a final decision, this should not dissuade you from filing your appeal. Administrative judges continue to issue IDs at their normal rate, and the current MSPB members are working diligently to get through the backlog and process further appeals.
If you are in the process of or considering submitting an appeal to the MSPB, it is paramount that you seek out experienced legal counsel and stay in contact with your law firm, as the deadlines for filing are extremely tight. If you have a petition for review or a case pending, it may be wise to confirm that a valid email or mailing address is recorded so that you can receive any updates to your case.
Don’t Go It Alone
The MSPB appeals process is complicated, and there are many complex steps and difficult jargon to understand. No employee should be forced to suffer the consequences of unjust adverse action. Hiring an attorney from the start can give you the best chance of approval, but having legal representation at the appeal and MSPB levels is even more critical. Without the necessary experience, you risk being denied or forced to wait in the massive case backlog for review.
If you have additional questions about how the MSPB appeal process works or about the current MSPB case backlog, our team of attorneys is available to assist you today.
