MSPB Issues Answers on Lack of Quorum at Outset of New Administration
On January 25, 2017, the United States Merit Systems Protection Board issued a document answering some “frequently asked questions” regarding the lack of Board “quorum,” or minimum number of members of the Board’s assembly.
The MSPB is currently without two of its three Board members after the Chairman’s January 7, 2017, resignation and lack of replacement for the previous Vice Chairman, whose term expired in March 2015. President Trump designated Mark Robbins (who is still serving his seven-year staggered term) as Vice Chairman on January 23, 2017, meaning that Vice Chairman Robbins is the only member of the Merit Systems Protection Board. Without another member appointed by the President, the Board stated that while it can issue decisions on appeals for which the voting process was completed while a quorum was present, it may not issue decisions on petitions for review for which the voting process was not completed before the Board lost a quorum until “the President nominates and the Senate confirms at least one additional Board member.”
Administrative judges may continue to issue initial decisions on appeals, the Board stated. If neither party files a petition for review following an initial decision, the administrative judge’s decision will become the final decision of the Board, and at that point may be appealed to the appropriate court or tribunal. If, however, either party wishes to file a petition for review of the initial decision to the full Board, no Board decision can be issued until a quorum is restored.
The Board noted that the lack of quorum does not prevent the lone Board member from granting a stay request or denying a stay request filed by the Office of Special Counsel but does prevent the Board from extending the period of any stay beyond the initial 45 calendar days.
The Board stated that it was “not possible at this time to estimate the length of time during which there will be only one sitting member of the Board,” but stated that it believed the lack of quorum could extend for several months, perhaps until Fall 2017 or later, given the length of time required for previous nomination and confirmation proceedings for Board members. The Board observed that it previously did experience a lack of quorum in 2003, but that the 2003 lack of quorum was resolved in a matter of a few weeks.
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Posted in Case Law Update