Developments at the MSPB: On January 31, 2020, the Merit Systems Protection Board (MSPB) issued its annual report for FY 2019. The report discussed the current status of the MSPB’s overall case processing in FY 2019.
As all three Board member slots are current vacant, the annual report was issued by MSPB General Counsel Tristan Leavitt, as active chief executive and administrative officer for 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. Due to the continuing lack of quorum, the backlog of Petitions for Review has now increased to 2,529. With the departure of the last Board member in March 2019, the MSPB has now also lost the ability to issue stays in whistleblower reprisal cases.
MSPB administrative judges continued to issue hearing-level decisions, despite the lack of quorum. Excluding addendum decisions, overall case volume declined 4.6% at the hearings level, continuing a decrease from FY 2018 (previously discussed in this blog).
The MSPB cited possible impacts of three May 25, 2018 Executive Orders (previously analyzed in this blog) on its operations. As the MSPB observed, “EO 13839 may significantly affect MSPB’s case processing due to its prohibition on agencies entering into “clean record” and other similar settlement agreements. The settlement rate dropped over 6 percent from FY 2017 compared to FY 2019 (53.36 percent compared to 47.02 percent, respectively). Reducing the percentage of cases that settle likely will increase the percentage of cases requiring a hearing, and adjudication is more complex now in general. EOs 13836 and 13837 could also lead to an increase in case receipts and may result in fewer appellants who are represented by unions on appeal.”
The report further flagged the possible impacts of the Supreme Court’s decision in Lucia v. SEC on the MSPB. As the MSPB noted, “MSPB hears appeals of adverse actions taken against ALJs under 5 U.S.C. § 7521, and MSPB case law regarding ALJs may be affected by Lucia. In addition, some parties have raised Lucia challenges regarding MSPB’s AJs. If Lucia challenges regarding MSPB AJs are sustained, appellants who raised successful challenges may be entitled to new proceedings before an officer appointed in conformity with the Appointments Clause of the Constitution.”