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Merit Systems Protection Board
| Administrative State |
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The U.S. Merit Systems Protection Board (MSPB) is an independent federal agency established in 1978. The MSPB aims to protect federal merit system principles from "partisan political and other prohibited personnel practices by adjudicating employee appeals over which the Board has been given jurisdiction," according to the agency's website. The board is also tasked with conducting studies on federal merit system principles.[1][2]
Noteworthy events
Federal Circuit finds MSPB judges are constitutionally appointed (2023)
- See also: Administrative law judge
The United States Court of Appeals for the Federal Circuit on January 17, 2023, refused a rehearing in McIntosh v. Department of Defense, finalizing its November 2022 holding that the administrative law judges (ALJs) of the Merit Systems Protection Board (MSPB) are constitutionally appointed.[3][4]
Former Defense Department employee Elfina McIntosh filed a complaint with the MSPB arguing that the department unlawfully fired her in 2017 in retaliation for her whistleblowing activity. The board upheld McIntosh’s removal and she appealed to the Federal Circuit. McIntosh argued in part that the MSPB ALJ assigned to her case was unconstitutionally appointed pursuant to the U.S. Supreme Court’s 2018 decision in Lucia v. Securities and Exchange Commission (SEC), which found that the SEC’s ALJs are officers of the United States and, as such, must be appointed by the president, the courts, or agency heads according to the U.S. Constitution’s appointments clause.[3][4]
The three-judge panel of the Federal Circuit in November disagreed with McIntosh, finding in part that the MSPB’s ALJs do not constitute principal officers because their decisions are not final and can be reviewed by the board. Moreover, the court found that the ALJs’ protections against removal do not solely qualify them as principal officers. Since the MSPB board in March 2022 ratified all prior appointments of its ALJs, the court deemed unnecessary any further examination of whether ALJs constitute inferior officers.[3][4]
MSPB regains quorum (2022)
The U.S. Senate on March 1, 2022, confirmed Raymond Limon and Tristan Leavitt by a voice vote to serve as members of the MSPB—creating a quorum for the three-member board and allowing its members to issue final decisions on petitions. Limon and Leavitt, both appointed by President Joe Biden (D), were sworn into office on March 4, 2022.[5][6][7]
The MSPB lacked a quorum from January 7, 2017, to March 4, 2022. Without a quorum, the MSPB was unable to issue final decisions on pending petitions and the board's backlog grew to nearly 4,000 cases.[5][8]
Vacancies arise for all three MSPB leadership positions (2019)
Mark Robbins, the Trump administration's last remaining board member of the MSPB, left his post on March 1, 2019, following the expiration of his term. Robbins’ departure left the agency with no active board leadership for the first time in its 40-year history.[9]
The MSPB began lacking the quorum required to issue final decisions in January 2017 and its backlog grew to more than 2,000 cases as of February 28. Robbins continued to issue his own opinions on pending cases before the board in the absence of a quorum, but his opinions lost any legal bearing upon the expiration of his term.[9][10]
Two of President Trump’s nominees to the board, Republican Dennis Kirk and Democrat Julia Akins Clark, were approved by the Senate Homeland Security and Governmental Affairs Committee on February 13. Trump’s third nominee, Andrew Maunz, withdrew his name from consideration in February following opposition from Democrats and federal employee groups concerning his conduct as an attorney with the Social Security Administration's general counsel's office.[11][12][13]
Senate Republicans stated that they would not confirm the cleared nominees until a third nominee is named in order to ensure that the board maintains a Republican majority.[9]
“These types of boards, you want to have a partisan majority in favor of the president’s policies, and without being able to move all three that wouldn’t be the case,” said Senate Homeland Security and Governmental Affairs Committee Chairman Ron Johnson (R-Wis.) in November 2018.[10]
In a hearing on February 28, the Senate committee questioned whether the agency’s administrative judges (AJs) would maintain the authority to issue decisions in the absence of board leadership. Valerie Brannon, a legislative attorney with the Congressional Research Service, stated that the AJs would be able to issue decisions because their delegations of authority were in place prior to the loss of a quorum.[14]
MSPB staff will continue to perform administrative tasks in the absence of board leadership, according to Robbins.[9]
DOJ recommends MSPB deference to agency heads in ALJ removal process (2018)
The U.S. Department of Justice (DOJ) issued a confidential memo in July 2018 to the general counsels of federal agencies stating that agency heads have the authority to determine what constitutes good cause in order to fire administrative law judges (ALJs). The memo was issued in light of President Trump's executive order converting ALJs to political appointees in the excepted service. Reuters obtained a copy of the memo and released its contents on July 23.[15]
The memo states that the MSPB, which determines what constitutes good cause in order to fire an ALJ, must be "suitably deferential" to the assessment provided by an agency head who seeks to remove an ALJ for failing "to perform adequately or to follow agency policies, procedures or instructions." ALJs can only be fired if the MSPB, after the opportunity for a hearing, finds that their actions demonstrate good cause for removal.[15]
See also
- Agencies and offices of the administrative state
- Independent federal agency
- Civil service
- Ballotpedia's administrative state coverage
External links
Footnotes
- ↑ U.S. Merit Systems Protection Board, "About MSPB," accessed April 9, 2018
- ↑ U.S. Merit Systems Protection Board, "How to File an Appeal," accessed May 27, 2022
- ↑ 3.0 3.1 3.2 Government Executive, "Court Affirms That Federal Employee Appeals Agency's Judges Are Constitutionally Appointed," January 18, 2023
- ↑ 4.0 4.1 4.2 U.S. Court of Appeals for the Federal Circuit, McIntosh v. Department of Defense, November 2022
- ↑ 5.0 5.1 [https://www.mspb.gov/FAQs_Absence_of_Board_Quorum_March_4_2022.pdf Merit Systems Protection Board, "Frequently Asked Questions about the Lack of Board Quorum and Lack of Board Members," March 4, 2022]
- ↑ Congress.gov, "PN1071 — 117th Congress (2021-2022)," accessed May 27, 2022
- ↑ Congress.gov, "PN764 — 117th Congress (2021-2022)," accessed May 27, 2022
- ↑ National Active and Retired Federal Employees Association, "MSPB Nominees Confirmed by Senate, Provide First Quorum in 5 Years," March 8, 2022
- ↑ 9.0 9.1 9.2 9.3 Government Executive, "Federal Employee Appeals Board's Doomsday Has Arrived," February 28, 2019
- ↑ 10.0 10.1 [https://www.govexec.com/pay-benefits/2018/11/mspb-likely-remain-powerless-senate-panel-fails-advance-trumps-nominees/153100/ Government Executive, " MSPB Likely to Remain Powerless as Senate Panel Fails to Advance Trump's Nominees," November 28, 2018]
- ↑ Government Executive, "Federal Employee Appeals Board May Soon Finally Be Able to Hear Cases," February 13, 2019
- ↑ Federal News Network, "A member-less MSPB more likely as Senate committee fails to clear pending nominees," November 28, 2018
- ↑ National Federation of Federal Employees, "Letter on the nomination of Andrew Maunz," July 18, 2018
- ↑ Federal News Network, "Senate forces ‘first’ for MSPB as the agency loses all members," March 1, 2019
- ↑ 15.0 15.1 Reuters, "In confidential memo to agency GCs, DOJ signals ‘aggressive’ stand on firing ALJs," July 23, 2018
