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Issues of Quorum at the MSPB

The Merit Systems Protection Board is experiencing the longest lack of quorum in its history, but the quorum will hopefully be restored soon. There has been a lack of quorum since January 2017 because the MSPB is currently comprised of only one member, Vice Chairman Mark A. Robbins, instead of three members. While administrative judges can still make initial decisions during the lack of quorum, any petitions for review go unanswered. Vice Chairman Robbins’ term expired on March 1, 2018, however he has agreed to serve a “one-year statutory carryover” until the quorum is restored.

With the presidential nominations of Dean Kirk and Andrew Maunz, the three-member quorum may be established soon. They were nominated on March 8, 2018 and March 5, 2018, respectively. Despite their nominations, they will still need to be confirmed by the Senate. Based upon the last two nominations, it takes a period of about four and a half months from nomination to confirmation.

While a quorum may soon be established, the backlog of MSPB petitions for review is still growing. As stated on the MSPB’s website, “Any petitions for review received after January 7, 2017, will be acknowledged by the Office of the Clerk of the Board and processed according to current Board procedures. However, the Board cannot issue decisions on these petitions until a quorum is restored.”

For appellants who do not want to wait for quorum, they have the option of appealing an initial decision to the U.S. Court of Appeals for the Federal Circuit, or in some cases, bringing some of their claims to a U.S. District Court or to the Equal Employment Opportunity Commission. Both parties still have the option of filing a petition for review.

It is estimated that the number of petitions for review awaiting quorum is several hundred. Vice Chairman Robbins has reviewed the cases as they are brought to him; however, he cannot issue any decisions of his own.

If you have already filed a petition to review, are looking over your options to appeal, or have an initial MSPB appeal to file, consider consulting with a federal employment attorneyto examine your options and assist in the process.