	Introduction

The Merit Systems Protection Board (MSPB or Board) is a n independent , executive branch agency that works to protect current, former, and prospective federal employees against inappropriate employment-related actions, in accordance with " merit system principles ," statutorily defined standards governing the performance and management of the federal workforce. The MSPB also aims to promote an effective federal workforce free of prohibited personnel practices. The Board mainly carries out its mission through adjudication of federal employee appeals of adverse actions . When the Board determines that a federal employee has been subject to an improper adverse action, it may order relief, including reins tatement, backpay, and attorney' s fees. The Board may also order federal agencies to comply with Board orders, conduct special studies of the civil service and other executive branch merit systems, and review Office of Personnel Management (OPM) rules and regulations to determine, for example, whether a federal agency has invalidly implemented the OPM requirements. This report focuses on the Board's adjudicatory authority. However, as of March 2019, the Board lacks any sitting members. This report discusses the establishment of the MSPB and its structure, as well as the role of the Office of Special Counsel, an independent, prosecutorial agency that operates concurrently with the Board. Board Composition and Terms of Office

As noted above, the Board consists of three members—a Chairman, a Vice Chairman, and a third member—all appointed by the President with the advice and consent of the Senate. Not more than two members may be adherents of the same political party. The term of office of each Board member is seven years, and terms are nonrenewable. Board members also have for-cause removal protection and may be removed by the President only "for inefficiency, neglect of duty, or malfeasance in office." In cases involving its original jurisdiction, the Board adjudicates the case initially rather than reviews an agency decision. Administrative judges adjudicate cases and issue initial decisions under the Board's appellate jurisdiction. For example, the Board's ability to hear and adjudicate appeals of agency-imposed adverse actions, such as removals, reductions in grade or pay, and suspensions for more than 14 days, has been limited by statute to actions involving only specified employees:
individuals in the competitive service who are not serving a probationary or trial period or who have completed one year of current continuous service; preference eligibles in the excepted service who have completed one year of current continuous service in an executive agency, the Postal Service, or the Postal Rate Commission; and non-preference eligible individuals in the excepted service who are not serving a probationary or trial period or who have completed two years of current or continuous service in an executive agency. In Kaplan v. Conyers , the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) interpreted the holding in Egan expansively. Disciplinary Action Cases

The MSPB also has original jurisdiction over actions brought by the Special Counsel to discipline an employee for committing a prohibited personnel practice, violating the provisions of any statute, rule, or regulation, engaging in misconduct within the Special Counsel's jurisdiction, or knowingly and willfully refusing or failing to comply with a Board order. When an employee or applicant for employment has been (1) affected by an agency personnel action that may be appealed to the MSPB and (2) believes that the basis for the action was discrimination prohibited by certain federal antidiscrimination provisions, he may appeal such action to the Board, which will decide both the discrimination issue and the appealable action. § 7703, federal employees or applicants for employment who are adversely affected by a final order or decision of the MSPB may obtain judicial review. This section also specifies the judicial forum for these decisions. The Federal Circuit must examine these cases under a standard of review that is deferential to the MSPB's determination. Accordingly, the Federal Circuit typically upholds Board decisions. § 7702, is for so-called "mixed cases" involving allegations of federal antidiscrimination laws in connection with an improper adverse personnel action. Following the MSPB's decision in a mixed case, affected employees may seek judicial review in federal district court, rather than the Federal Circuit. District court review may be preferable for the petitioning federal employee, as district courts generally review these discrimination-related claims under a de novo standard (i.e., affording no deference to the determination of the MSPB). According to the Office of Special Counsel, the new Act will, among other things, promote more "robust implementation of whistleblower protection laws." Without a quorum, the Board is unable to issue final decisions in cases where an initial decision has been appealed.
The Merit Systems Protection Board (MSPB or Board) is a quasi-judicial independent agency in the executive branch charged with protecting federal employees against improper employment-related actions. The Board works to ensure, for example, that federal agencies avoid taking arbitrary action against employees, exhibiting favoritism, or engaging in reprisals against whistleblowers. The MSPB also aims to promote an effective federal workforce free of certain types of discrimination and other prohibited personnel practices. While the Board mainly carries out its mission through adjudication of federal employment-related disputes, it also performs specified oversight functions related to federal employment, including conducting special studies of the civil service and other executive branch merit systems.
Established by the Civil Service Reform Act of 1978, the MSPB consists of three Board members, appointed by the President with the advice and consent of the Senate. Not more than two Board members may be adherents of the same political party. The term of office of each Board member is seven years, and terms are nonrenewable. Board members may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office. The Board operates concurrently with the Office of Special Counsel, an independent, prosecutorial federal agency. The Special Counsel receives and investigates complaints related to certain kinds of federal agency misconduct and may petition the Board for corrective action.
The MSPB operates like a tribunal and maintains procedures for conducting hearings, examining evidence, and rendering decisions. Most cases the Board reviews are federal employee appeals of adverse actions, including those related to removal or suspension of employment. When the MSPB determines that a federal employee has been subject to an improper adverse action, the Board can issue orders that compel agencies to reverse these actions and, depending upon the particular agency action in question, may order relief, including reinstatement, backpay, and attorney's fees.
The Board also maintains original jurisdiction over certain types of cases in which it hears and decides the case initially rather than reviews an agency decision. For example, the MSPB may adjudicate cases brought by the Office of Special Counsel related to a prohibited personnel practice. The Special Counsel may, among other things, petition the Board for a stay of an adverse employment action in relation to this practice. Some of the Board's adjudicatory functions, including appeals of adverse action decisions, typically are carried out by "administrative judges" employed by the Board, while administrative law judges (ALJs) may examine matters coming under the Board's original jurisdiction.
Federal employees or applicants for employment who are adversely affected by a final order or decision of the MSPB may obtain judicial review. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) is generally the proper judicial forum for these cases. Federal law compels the Federal Circuit to examine these cases under a standard of review that is deferential to the MSPB's determination. Consequently, the Federal Circuit typically upholds Board decisions. But a special jurisdictional rule exists for so-called "mixed cases" involving an alleged violation of federal antidiscrimination laws in connection with an improper adverse personnel action. Following the MSPB's decision in a mixed case, affected employees may seek judicial review in federal district court rather than the Federal Circuit. District court review is generally preferable for the petitioning federal employee, as district courts typically review these discrimination-related claims under a de novo standard (i.e., affording no deference to the determination of the MSPB).
Since March 2019, the Board has lacked sitting members. Lack of a quorum prevents the Board from performing some of its review functions, including issuing final decisions in cases when an initial decision issued by an administrative judge has been appealed to the full Board. As a result, a significant case backlog has developed. President Trump has submitted nominees to the Senate to fill vacancies on the Board.