No quorum at the MSPB: What it means for you

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You may have missed the February announcement from the Merit Systems Protection Board that it lacks a quorum. That means the board is unable to issue decisions by board members, so decisions of its administrative judges are not reviewable by the board until a quorum is restored.

The MSPB is currently without two of its three board members after the resignation of then-Chairman Susan Grundmann on Jan. 7 and the earlier resignation and lack of replacement for the previous vice chairman, whose term expired in March 2015.

Shortly after his inauguration, President Trump designated Mark Robbins (who is still serving his seven-year staggered term) from member to vice chairman. This means that Robbins is the only member of the board.

The board is composed by statute of three presidentially nominated and Senate-confirmed members.  Because a majority vote of the board is required to decide a case, the board is unable to issue decisions on pending or newly filed petitions for review, or PFRs. The board will not be able to act on any PFR until a quorum is restored.

Administrative judges of the MSPB may continue to issue initial decisions. Either party (the employee or the agency) can still appeal the judge’s initial decision to the full board by way of a PFR. The lack of a quorum does not serve to extend the time limit for filing any pleading on PFR. However, the board cannot act on a PFR until a quorum is restored.

Also, if you or your agency filed a PFR with the board before the departure of the chairman last month, then your PFR cannot be decided until a quorum is restored.  Moreover, you cannot now switch forums and file an appeal in the federal circuit court for judicial review.

The lack of quorum could continue for several months, perhaps until fall 2017 or later. Until then, if you receive a decision from a judge that you believe is legally wrong, you have the right to file an appeal directly with the federal circuit court. Although the appeal process of judicial review is much more  onerous than the PFR process and may take just as long as waiting for a MSPB quorum, it is an option to consider.

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About Author

Debra Roth

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com.

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