What happens when a federal board has no members?
Not much. The U.S. Merit Systems Protection Board (MSPB) is vacant for the first time in its 40-year history, leaving hundreds, possibly thousands, of federal employees with pending appeals hanging in the balance. Those with new cases have an even longer wait—and hopefully, a lot of patience.
The current unfilled vacancies coupled with the end of the acting chair’s term on March 1, 2019 does not mean the end of the MSPB as we know it. However, cases are continuing to quickly multiply, making the wait even longer for federal employees seeking recourse in their employment matters. As of January 31, 2019, the MSPB reported that there are just under 2,000 cases pending review, while more than 1,700 cases are awaiting board action.
To decide appeals cases, the MSPB needs at least two members. The Senate failed to confirm President Donald Trump’s MSPB nominees before the end of 2018, requiring that the nomination process start over with the President re-nominating his choices or selecting new nominees in 2019. Trump re-nominated the three candidates this year, but one withdrew his name from consideration. For the Senate to vote, there must be three candidates.
MSPB is currently being overseen by its general counsel, but that individual is not authorized to write opinions on pending appeals. In the meantime, federal employees with pending cases before the MSPB will have to wait for a quorum to have their appeals reviewed. Those with new appeals may file them, but should expect long waits until a new board gets through the backlog before reviewing any new cases. The Board will review older cases first, and then review them in the order they were received, creating a very long wait indeed.
Last year, on March 8, 2018, President Trump announced the nomination of Republicans Dennis Dean Kirk as MSPB chair and Andrew F. Maunz as vice chair, which would have allowed current acting chair Mark A. Robbins to depart before his one-year carryover ended March 1, 2019. However, Maunz’s nomination failed by a vote of 7-7 to advance to the Senate’s Committee on Homeland Security and Governmental Affairs with six Democrats and Senator Rand Paul (R-Kentucky) voting against the nomination. A group of unions also expressed opposition to the nominations of Kirk and Maunz in a letter to the Committee on Homeland Security and Government Affairs.
Senator Ron Johnson (R-Wisconsin), chair of the Committee, recessed after Maunz was voted down without holding votes on the other two nominees. In addition to Kirk and Maunz, Trump nominated Julia Clark as a board member. She is the suggested nominee of the Democrats.
Pending cases have been growing since Susan Tsui Grundmann resigned in January 2017, leaving Robbins as the only member of the board. Robbins, whose term was extended one year after his term officially ended March 1, 2018, had been performing administrative and executive functions, but could not make any decisions regarding petitions of review (PFR) of decisions made by regional administrative judges because of the lack of quorum.
Federal workers with employment matters may want to consider contacting a federal employment attorney to discuss the merits of appealing through the Federal Circuit, which in some cases, may be a better alternative to filing a PFR with the MSPB. Additionally, certain cases involving allegations of discrimination may be appealed to the Equal Employment Opportunity Commission or a U.S. District Court.