The Merit Systems Protection Board has lacked a quorum since early January 2017. Without a quorum, appeals from administrative judge initial decisions to the Board level have been piling up. Recent reports are that there are about 1,400 such appeals awaiting a quorum.
That’s a backlog of about two years.
With no quorum in sight for the near future, and a backlog of at least two years, maybe it’s time to considering bypassing Board-level review.
Here are some factors to consider. First, the employee/appellant in an MSPB appeal has two basic options for appealing an unfavorable initial decision of the administrative judge.
The employee can file a petition for review with the full Board, but that requires a Board quorum to adjudicate. Or the employee/appellant can appeal the AJ decision directly to the U.S. Court of Appeals for the Federal Circuit.
Historically, almost all employee appeals of an AJ decision are to the Board. That’s probably because an appeal to the Board level is far easier and less expensive than appealing to the court of appeals, and also because the Board historically functioned well in adjudicating such appeals. It’s also likely that most employee/appellants were unaware that they could appeal directly from an AJ initial decision to the court of appeals.
But consider one more thing: Not every case is suitable for court review. If you are in disagreement with factual or credibility findings of the AJ, then the court of appeals is likely not a favorable forum for your case.
If, however, your appeal involves a legal issue, such as an interpretation of a statute, agency regulation or policy, or involves a question of whether the agency applied a statute, regulation or policy properly to you, then the Federal Circuit may be an option worth considering. The Federal Circuit has a favorable track record in reversing MSPB and agency actions that fail to abide by the rules or law.
For those of you who have a petition for review pending before the Board, the MSPB announced a policy change May 11, 2018, to its process for withdrawing a pending PFR so you can pursue an appeal in the Federal Circuit.
Previously, the Clerk of the Board allowed you to withdraw your PFR if you made the request early in the PFR process before the PFR record closed. Now, given the lengthy period of time without a quorum, the Clerk of the Board will allow you to withdraw your PFR if there is no apparent issue of untimeliness and the opposing party (the employing agency) does not object to your withdrawal request. In those instances, the Clerk will issue you a final order for purposes of exercising your further right to review in court.
For many more months to come, we will be without a Board quorum. Therefore, when you receive the AJ’s initial decision, consider bypassing the Board for the Federal Circuit. In doing so, pay close attention to the differing deadlines for filing either your PFR with the Board or with the court of appeals.
Debra Roth is a partner at Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. Email your legal questions to firstname.lastname@example.org.