May 5, 2022
By: Dominick Schumacher
Associate, Alden Law Group
In March 2022, the Senate confirmed two of President Biden’s three nominees to Chair the Merit Systems Protection Board (“MSPB” or “Board”), ending five years of paralysis. With two of three Board Member positions now filled, the Board has a quorum for the first time since January 7, 2017. That means that the MSPB can once again issue decisions in a variety of cases affecting federal employees.
What Does the MSPB Do, and Who is it For?
The Merit Systems Protection Board plays a crucial role defending the rights of federal employees, including whistleblowers, and ensuring agencies follow the federal civil service laws. The MSPB hears cases involving wrongful terminations, suspensions, reductions in pay or reductions in grade, furloughs, reductions in force, as well as determinations by the Office of Personnel Management (OPM) on suitability and retirement benefits and other OPM employment practices. In particular, the MSPB plays a crucial role in enforcing the civil service rules and protecting federal employees who were terminated, suspended, or disciplined based on race, sex, religion, national origin, color, disability, age, or in reprisal for protected EEO activity, or without due process of law. The MSPB also defends the rights of whistleblowers who were terminated, suspended, disciplined, harassed, or mistreated. “Whistleblowers” include federal employees who: disclosed violations of law, rule, or regulation; disclosed gross mismanagement, a gross waste of funds, or an abuse of authority; or disclosed substantial dangers to public health or safety.
What Happens When I File a Case at the MSPB?
Cases at the MSPB generally occur in two stages. When an employee files an Adverse Action Appeal (challenging a termination or suspension) or an Individual Right of Action (whistleblower retaliation) claim, the employee is entitled to a hearing before an Administrative Judge. An Administrative Judge will issue an Initial Decision on the case. If an employee is successful, the Judge will order the Agency to cancel any discipline or other adverse action and can award back pay, back benefits, other monetary damages, and reimburse the employee for their attorney fees.
Parties may appeal an Administrative Judge’s Initial Decision to the Board by filing a Petition for Review. The Board Members will then issue a Final Decision. (The Board must have a quorum of at least two appointed Members in order to issue Decisions). Employees can also opt to appeal an Administrative Judge’s Initial Decision to the U.S. Court of Appeals for the Federal Circuit.
Will The MSPB Be Able to Hear My Case?
Yes. From January 2017 to March 2022, MSPB Administrative Judges were still hearing cases and were able to issue initial decisions, and continue to do so. However, there is a backlog of about 3,600 cases where an employee or agency appealed an initial decision to the full MSPB by filing a petition for review. Five years without a quorum at the Board means that many employees, despite succeeding before an Administrative Judge, have had their relief placed on hold while their appeal is pending.
The MSPB has begun issuing decisions on these back-logged appeals, but it will be quite some time to work through all the cases. In its first two months, the Board issued about 116 decisions, eight of which were precedential.
If you are a federal employee who has blown the whistle on illegal activity, threats to public safety, or other waste, fraud, and abuse, and faced reprisal or retaliation up to and including wrongful suspension or termination, fill out our intake form or call us at 202-463-0300.