MSPB Will Not Issue Board Decisions Until Quorum Restored | Practical Law

MSPB Will Not Issue Board Decisions Until Quorum Restored | Practical Law

The US Merit Systems Protection Board (MSPB or Board) has issued a Frequently Asked Questions (FAQs) list addressing the impact of a lack of quorum on MSPB operations, including the Board's limited ability to issue decisions.

MSPB Will Not Issue Board Decisions Until Quorum Restored

Practical Law Legal Update w-005-6731 (Approx. 3 pages)

MSPB Will Not Issue Board Decisions Until Quorum Restored

by Practical Law Labor & Employment
Published on 03 Feb 2017 • USA (National/Federal)
The US Merit Systems Protection Board (MSPB or Board) has issued a Frequently Asked Questions (FAQs) list addressing the impact of a lack of quorum on MSPB operations, including the Board's limited ability to issue decisions.
On January 25, 2017, the US Merit Systems Protection Board (MSPB or Board) issued US Merit Systems Protection Board: Frequently Asked Questions about the Lack of Board Quorum (FAQs), which addresses the impact of a lack of quorum on MSPB operations, including the Board's limited ability to issue decisions.
Board members are nominated by the President and confirmed by the Senate. There was already one vacancy on the Board when Chairman Susan Tsui Grundmann announced her resignation effective January 7, 2017. Board Member Mark Robbins was designated Vice Chairman on January 23, 2017 but he is now the sole Board member, resulting in a lack of quorum.
The FAQs note that with a lack of Board quorum:
  • The MSPB cannot:
    • issue decisions on petitions for review pending that were not yet voted on when the Board lost a quorum. These decisions cannot be issued until a quorum is restored;
    • issue decisions on requests to withdraw petitions for review, because these decisions require a Board decision made by majority vote; or
    • consider an Office of Special Counsel (OSC) request for an extension of an initial stay request (although Vice Chairman Robbins can issue initial stay requests of 45 calendar days).
  • However:
    • the MSPB has issued decisions on pending appeals for which the voting process was completed while the Board had a quorum; and
    • petition for review filing deadlines will not be tolled during the lack of quorum (they must be filed within 35 days of issuance of the initial decision).
  • Any petitions for review received after January 7, 2017 will be acknowledged and processed according to Board procedure, but cannot be decided without a quorum.
  • Administrative judges (AJs) may continue issuing initial decisions, which will become final if neither party files a petition for review.
  • An initial decision that becomes final may be appealed to the appropriate court or tribunal, including the US Court of Appeals for the Federal Circuit, an appropriate US Court of Appeals, a US District Court, or the EEOC, depending on the type of appeal and the claims raised.
The Board will regain a quorum when at least one new member is appointed and will then resume issuing decisions. The MSPB is unsure how long the Board will have only one sitting member, but based on previous nominations and confirmations, expects that a quorum will not be restored to the Board for at least several months.