The Merit Systems Protection Board was established in 1978 to protect federal employees from unfair treatment at work and to promote the Merit System Principles. The MSPB comes into play when federal employees have blown the whistle on fraud or mismanagement, or when civil servants have complained of bias, arbitrariness, retaliation or other wrongful treatment in the workplace and need to appeal. It also provides independent research and analysis on the merit systems for the executive branch.
If you have been trying to appeal a personnel decision, however, you may have noticed a substantial delay. The reason for that delay is that the MSBP currently has only a single member — and at least two out of the usual three members are required in order to decide any case. The other members’ appointments timed out in 2015 and 2017 with no replacements lined up.
Traditionally, the president chooses two MSPB members, while the Senate minority leader chooses the third, and all three are confirmed by the Senate. That way, the board typically has representatives from both parties. However, it took a year for President Trump to nominate his two members and even longer for the Democrats to choose their nominee. Then, the confirmation process ground to a halt.
In September, the Senate Homeland Security and Government Affairs subcommittee acknowledged that the current Congress won’t make the confirmations. The work that subcommittee did to screen the three nominees will be repeated once the new Congress is convened. This is expected to add several months, at least, to the confirmation process — assuming the nominees aren’t changed.
The term of the remaining member of the MSPB expires on March 1. If no other nominees are confirmed by then, the board’s offices will close entirely. It would be the first time that has happened in the agency’s 40-year history.
A growing backlog of over 1,500 federal employee grievances hang in the balance.
For almost two years, the remaining board member has been carefully evaluating each and every appeal. The 59-year-old lawyer has handled 1,520 MSBP cases — but all his work will have been vain if no new board members are confirmed before he leaves. He has analyzed and made detailed notes about each and every case, but the new board members will have to work through them on their own.
If you need to appeal a grievance, don’t give up. You still need to file your appeal in a timely fashion for it to go forward. A federal employment law attorney may not be able to ensure the Merit Systems Protection Board is operational, but we can make sure your rights are protected.