Federal Circuit Skips Quorum-Less Board, Remands To MSPB Administrative Judge

After waiting years for the adjudication of his case without a quorum at the MSPB, a former federal employee requested relief from the United States Court of Appeals for the Federal Circuit. On April 30, 2019, the appeals court granted his motion.

In 2013, a former Nuclear Regulatory Commission employee filed an Individual Right of Action (“IRA”) appeal with the Merit Systems Protection Board (“MSPB”), alleging that his removal and other agency actions were prohibited personnel practices. An MSPB administrative judge dismissed his IRA for lack of jurisdiction. The employee petitioned the full Board for review, and on July 29, 2014, the Board denied the employee’s petition for review and affirmed the administrative judge’s final decision. The employee then appealed the Board’s decision to the United States Court of Appeals for the Federal Circuit. During the litigation of this appeal, the MSPB admitted in its brief that the full Board had “erred in analyzing [the employee’s] 11 alleged personnel actions as protected disclosures.” On September 12, 2016, based on the Board’s concession of error in its reasoning, the appeals court ruled that the Board’s judgment was “no longer final,” and remanded the case back to the Board for further proceedings.

As time passed, the employee inquired with the MSPB as to the status of his appeal. On December 15, 2017, the Acting Clerk of the MSPB responded to his inquiry, and advised the employee that because the Board lacked a quorum, it could not issue any decisions that require a majority vote, including the adjudication of his appeal.

On February 25, 2019, the employee filed a “Motion for Enforcement, Civil Contempt, Sanctions, and Other Equitable Relief” with the appeals court due to the continuing inaction of the Board, requesting that the appeals court stand in place of the MSPB. According to the appeals court, the motion cited the power of the courts, “governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.”

The appeals court requested a response from the MSPB. The MSPB, without a quorum since January 7, 2017, responded that it had “no internal mechanism or authority to transfer a voted case or a case residing with a Board member to an administrative judge absent direction by the Board members to do so.” The MSPB also stated that it lacked internal authority to transfer the appeals court’s remand from the full Board to a regional office for an administrative judge to review. However, the MSPB stated that it could take such an action “if it were authorized and ordered by [the appeals court] because compliance with such an order would be entirely ministerial.”

The appeals court adopted that suggestion, and instructed the transfer of its remand from the “petition for review level” to an administrative judge “for review, investigation, and resolution of the issues for which this court remanded to the Board” in 2016.

For the reasons stated above, the appeals court granted the employee’s motion.

Read the full order: Benton v. MSPB.

This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update


This Week on FEDtalk

Fellows Moving Government Forward

Tune in to FEDtalk this week to hear about the fellowships bringing innovation and technology skills to government. Guests from fellowships impacting the legislative and executive branches will discuss how they bring new skills to government.

Read more ...

Hear it from FLEOA

FLEOA Successfully Advocates for Change to Michigan LEOSA Policy

On Tuesday, FLEOA President Larry Cosme issued a letter on Michigan LEOSA policy.  The full text of the statement is below.

Read more ...


The free weekly e-report for Federal Law Enforcement

Get in touch with us

Email FEDagent publisher

Copyright 2020 FEDagent.com
Hosted by Peak Media Company, LLC