Merit Systems Protection Board Annual Report Hits on Lack of Quorum

In the Merit Systems Protection Board’s (MSPB) 2019 Annual Report, the General Counsel reviews the board’s year with emphasis on how the lack of quorum, and a lack of board members entirely since March 2019, has crippled the board’s abilities. According to the report, at the end of FY2019 the board had a backlog of 2,378 pending cases at headquarters.

According to the report, the lack of quorum at the board since January 2017 has prevented the MSPB from issuing final decisions in petitions for review (PFRs) and other cases at headquarters, including decisions in enforcement cases and in cases requesting review of OPM regulations.

The report also explains that the MSPB does not publish any report of merit system studies during periods without a quorum. Instead, the board has released three editions of the Issues of Merit newsletter. The board has also released four articles or briefs on probationary practices, PPPs, unacceptable employee performance, and emotionally laborious work.

Aside from the lack of quorum, the report also notes additional human capital challenges involving the retirement eligibility of its workforce.

“Over 35 percent of all MSPB employees, including over 47 percent of permanent AJs and adjudication managers involved with processing initial appeals, are eligible to retire between the end of FY 2019 and the end of 2022. It is also challenging to ensure continued expertise when employees in critical, one-deep positions depart the agency through retirement or transfer,” the report explains.

The report notes several Office of Management and Budget (OMB) guidances which have the potential to impact the MSPB’s workload and possibly create the need for moving additional resources to the board.

“Changes in law and Government reform also emphasize the importance of MSPB’s responsibility to conduct studies of Federal merit systems and review OPM’s significant actions to ensure that the Federal workforce continues to be managed in accordance with MSPs and free from PPPs,” the report notes. “These changes increase the importance of MSPB’s responsibility to promote merit and educate employees, supervisors, managers, and leaders on the merit systems, MSPs, PPPs, and MSPB appellate procedures, processes, and case law. These outreach and educational functions improve workforce management over time and may reduce the time and cost of processing appeals for agencies, appellants, and the Government as a whole.”

The report also contains information on the MSPB’s training and international outreach opportunities in 2019 and relevant legislation moving through Congress relating to the board.