What Does the MSPB Backlog Mean for Your Appeal?

What Is the MSPB & Why Is There a Backlog?

The MSPB, or the Merit Systems Protection Board, is an independent agency housed in the Executive branch which serves a quasi-judicial role as the guardian of Federal merit systems. When federal employees face adverse disciplinary actions (such as termination for unacceptable performance), they can file an appeal with the MSPB. It is then the MSPB’s job to review these appeals and make a final decision, determining if the action was unnecessary, unjust, or violated employment rules.

Common examples of disciplinary actions that have been brought before the MSPB include the following:

  • Suspensions of more than 14 days
  • Demotions in grade
  • Misconduct-based termination
  • Performance-based termination

Currently, there is a very significant backlog of MSPB cases. This is due to Board seat vacancies over the last five years.

MSPB administrative judges make initial decisions (ID) on appeals. After an ID is issued, the parties involved have to decide whether they agree with this decision. If they do not, they can file a petition for review (PFR), which then goes to the Board for a final decision.

The Board usually consists of three presidentially-nominated and Senate-confirmed members. Each board member serves for seven years. For final written decisions, there must be a quorum of at least two Board members.

Between January 2017 and March 2022, all three MSPB seats were vacant. However, this did not put a halt to administrative judges issuing IDs. Yet, when any IDs were appealed, and PFRs were filed, there was no quorum to make final decisions. This resulted in a backlog of over 3600 PFRs.

Keep reading for more answers to frequently asked questions about the current MSPB backlog.

How Long Will the Backlog Take to Clear?

In March 2022, two Board seats were filled (Raymond A. Limon and Tristan L. Leavitt), with the third being filled in May 2022 (Cathy A. Harris). With a quorum instated, the MSPB could get to work on the backlog. In an interview with the Federal News Network, MSPB member Tristan Levitt provided an update on the backlog. He stated that in the seven months since he and a fellow MSPB member, Raymond Limon, were confirmed, they have been able to work through 511 cases, for an average of 73 cases per month. Levitt also notes that their pace has picked up, with 96 cases being decided in September.

With the goal of clearing 1000 cases in this first year, Levitt projects that it will take several years to clear up the backlog.

What Should I Do If My Case Is Part of the Backlog?

If you have filed a PFR (or another appeal) with the MSPB between 2017 and March 2022, your case is likely caught up in the backlog. This can be incredibly frustrating, and you may wonder what you should do. We recommend reaching out to our law firm for guidance.

Can I Still File an MSPB Appeal Even with the Backlog?

Yes, if you have suffered unjust treatment while working as a federal employee, filing an appeal with the MSPB may be in your best interest. While it is currently unclear how long cases will take to be processed and to achieve a final decision, this should not dissuade you from filing your appeal. As previously mentioned, the administrative judges continue to issue IDs at their normal rate, and the new MSPB members are working diligently to get through the backlog and process further appeals.

If you have questions about an already-filed PFR or about filling one with the MSPB, contact John P. Mahoney, Esq., Attorney at Law, PLLC. Our federal employment law team can guide you.