Developments at the MSPB: On February 28, 2019, the Merit Systems Protection Board (MSPB) issued its annual report for FY 2018. The report discussed the current status of the MSPB’s overall case processing in FY 2018.
The annual report was issued on Vice Chair Robbins’ last day in office before his holdover status expires, leaving no Board members. As Vice Chair Robbins noted, “My term expires at the end of February 2019. Subsequent to that time, if there are no new confirmed Board members, MSPB will continue operations under its continuity of operations plan (COOP). Under the COOP, the MSPB General Counsel will become the agency’s acting chief executive and administrative officer.” In addition, the report noted numerous other major MSPB positions are currently occupied by acting officials. The report further noted the possible impacts of the Supreme Court’s decision in Lucia v. SEC, pertaining to the constitutionality of certain appointment methods for administrative law judges, on staffing at the MSPB.
The MSPB reported that its backlog of undecided Petitions for Review (PFR) continues to grow. The MSPB has been unable to issue PFR decisions since January 8, 2017, when the 3-member Board dropped down to a single member and lost quorum. In an ordinary year, the MSPB issues around 1,000-1,100 PFR decisions. The MSPB reported that the backlog of PFRs awaiting adjudication had grown to 1,800 cases by the end of FY 2018. Vice Chair Robbins has voted on decisions for many of those cases by the end of FY 2018, but with his departure, those opinions will never be issued under his name.
Lack of quorum did not impair the ability of MSPB administrative judges to issue decisions at the hearing level. Overall case volume declined 6% at the administrative judge level, with a 9% reduction in Independent Right of Action (IRA) appeals but a 4% increase in adverse action appeals. The Department of Veterans Affairs now tops the list of agencies defending appeals, up 20% over last year; Office of Personnel Management (OPM) appeals (chiefly retirement appeals) were down 20% from FY 2017, primarily due to a major reduction in FERS retirement overpayment appeals.
The report also included the MSPB’s observations on overall OPM operations, including its long-term shift in staffing away from human resources functions and toward background investigation and retirement issues. The report further discussed likely impacts of the upcoming transfer of background investigation functions to the Department of Defense and other reorganization proposals for OPM.
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