Memberless MSPB will lack power to stay personnel actions and plan studies

By Anjali Patel, Esq., cyberFEDS® Legal Editor Washington Bureau

IN FOCUS: With the sole member’s term expiring on March 1, the Merit Systems Protection Board will likely have no sitting board members for the first time, which will only contribute to the rising backlog of cases, James Eisenmann, of counsel at Kalijarvi, Chuzi, Newman & Fitch, PC, told cyberFEDS®.

The MSPB has been without a quorum since January 2017, but Vice Chair Mark Robbins has been able to process stays of personnel actions requested by the Office of Special Counsel and help set the agency’s research agenda.

Once Robbins steps down and moves full time to his position as Office of Personnel Management general counsel, those functions can’t continue.

The House this week passed H.R. 1235 — The MSPB Temporary Term Extension Act — which was introduced by Rep. Elijah Cummings, D-Md., and would extend Robbins’ term for one year, but with the caveat that he would not be able to concurrently hold another federal government position. Similar legislation has also been introduced in the Senate, but Eisenmann said there is only a slim likelihood that Robbins would even stay at the MSPB another year if he had to give up his job at OPM.

The Senate Homeland Security and Governmental Affairs Committee has approved the nominations of Dennis Kirk as chair and Julia Clark as member, but Andrew Maunz’s nomination was withdrawn. Committee Chair Ron Johnson, R-Wis., said the two nominations will be held for a full Senate vote until President Trump can nominate and the committee approve a third nomination.

The impact

Although “some theories have been thrown around that delegation of authority to administrative judges is not effective without a sitting board,” Eisenmann believes MSPB AJs will continue to issue decisions unless something else happens. Of course, those decisions that are appealed to the full board must wait for a quorum. The MSPB’s William Spencer told cyberFEDS® that as of Feb. 27, the backlog consists of 1,993 petitions for reviews pending at headquarters.

Eisenmann said the “worst part of this is that the PFRs just sit there and keep piling up, causing the backlog to get worse day by day” — all waiting for the new board members upon Senate confirmation, “whenever that might happen.”

According to Eisenmann, “even if a full board came in today, it would still likely be two to three years until the board reviews a recently filed PFR” depending on how the board prioritizes cases.

For example, Eisenmann said the board could:

· Review cases on a “first in/first out basis.”
· Choose to first address removals, benefits questions, and whistleblower retaliation cases.
· Some hybrid of these options.

The board also may “look at the format in which the decisions are issued,” he said.

“The board’s decisions were in one of two formats: a full-blown opinion and order or a short-form decision known as a final order, which provides the board’s conclusion without any analysis,” he said.

Beginning in 2011, “the board changed the format of the decisions to precedential opinion and orders or nonprecedential opinion and orders, a hybrid of the short-form and the full-blown decisions which required a bit more work from the staff,” he said.

To help alleviate the backlog, “the board could go back to the old format,” which would allow them to issue quicker short-form decisions, he added.

Although Eisenmann still favors nonprecedential decisions that provide for greater transparency on the reasoning behind the board’s decision, he said the board could choose to reinstitute the short-form decisions for a set time period to address the backlog.

The point, he said, is that the board likely will be “looking at a lot of ways and mechanisms to get decisions out as quickly as possible.”

Stays and studies

One big concern is how stay requests for personnel actions from the Office of Special Counsel will be handled. Special Counsel Henry Kerner told cyberFEDS® that without any board members at the MSPB, “OSC is unable to fully protect federal employees who have been retaliated against or were subjected to unfair personnel practices,” so the hope is that the MSPB vacancies “can be filled as quickly as possible.”

Eisenmann also said that the MSPB “won’t be able to make any big plans” or work on its studies function.

By this point in the year, he said, the board “should be head-long into preparing their next research agenda but can’t do so without board guidance,” he added.