The $505 Alternative to Filing a PFR to the [Nonexistent] MSPB

By Deborah Hopkins, May 15, 2019

Everyone who reads this newsletter knows by now that we don’t have a fully functioning Merit Systems Protection Board (MSPB or Board). Each of the three positions at the top of the agency, reserved for political appointees, has been vacant for more than two months, but there have been no decisions issued at all for over 28 months because, from early January 2017 through the end of February 2019, there was only one Board member – and one member is not a quorum. No quorum = no MSPB decisions.

Three nominees have been named; two have already cleared committee, and the final nominee needs to be voted on in committee. Then, if he passes muster, all three nominees will be brought to the Senate floor for a confirmation vote.

As it stands today, the administrative judges (AJs) are still issuing initial decisions (IDs) based on agency actions. If either party does not like the outcome of an ID, the typical process is for that party to file a Petition for Review (PFR) with the three Board Members – a process that usually renders a decision within about six months or so. But because at the Board level the MSPB is defunct, any PFR that is filed goes into a pile on top of more than 2,100 other PFRs, and there it sits for who-knows-how-long. Talk about discouraging.

There is a lesser-known alternative to filing a PFR that it appears more appellants are taking: filing PFRs directly with the Federal Circuit. After 35 days, if no PFR is filed with the Board, the administrative judge’s ID becomes the final Board decision, after which parties have the right to file a PFR directly with the Federal Circuit. 28 USC § 1295(a)(9); 5 USC 7703(b)(1)(A); 5 CFR § 1201.113.

Typically, appellants file PFRs to the MSPB because it’s free, and filing in the Federal Circuit is not. Also, the PFRs from the Board can then be appealed to the Federal Circuit – so appellants who go the route of taking the PFR directly to the Federal Circuit are losing an entire step of review.

I can’t say I blame them, though; I wouldn’t want to wait 3+ years to get a decision on a PFR. Either way they go, MSPB or Federal Circuit, appellants who file PFRs don’t have very much success in getting agency discipline overturned or mitigated. The Federal Circuit’s scope of review in an appeal from the Board is limited by statute; it must affirm the Board’s decision unless the court finds the decision to be:

“(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 USC § 7703(c); see Kahn v. Dep’t of Justice, 618 F.3d 1306, 1312 (Fed. Cir. 2010).

Under the substantial evidence standard, this court reverses the Board’s decision only “if it is not supported by ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Haebe v. Dep’t of Justice, 288 F.3d 1288, 1298 (Fed. Cir. 2002) (quoting Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096 (Ct. Cl. 1981)).

Hairston v. VA, No. 2018-2053 (Fed. Cir. Mar. 8, 2019).

Here are some additional facts you may not know about the Federal Circuit:

• Last year, the Federal Circuit upheld agency decisions 92% of the time.
• It costs about $505 to file a PFR from an agency action in the Federal Circuit.
• If an agency wants to take a case to the Federal Circuit, it can’t file unilaterally; OPM has to give approval and then the Department of Justice gets involved with the litigation.
• The largest percentage of cases the court takes deals with patents.
• The Federal Circuit may have a total of 12 active circuit judges sitting at any given time, and they are required to reside within 50 miles of the District of Columbia. 28 USC § 44. Judges on “senior status” are not subject to this residency restriction.
• The Federal Circuit website lists 18 judges; only five are female.
• In 2018, three of the judges sat by designation with other district or circuit courts, which is allowable under 28 USC 291.
• Oral argument sessions are open to the public. If you’d like to attend, oral arguments are normally held the first full week of each month. You can find the oral argument calendar for the year on the court’s website: http://cafc.uscourts.gov/argument/upcoming-oral-arguments.
• Total argument time (including rebuttal time) is limited to 15 minutes per side for panel hearings and 30 minutes per side for en banc.
• An attorney who wishes to be admitted to practice before the Federal Circuit must fill out an application and pay a $231 nonrefundable fee.

Expect to see more Federal Circuit action in the coming months, as appellants are starting to realize that they’ll have a resolution much sooner if they skip the PFR to the Board. In fact, recent statistics on the MSPB’s website show that only half the usual number of PFRs are being filed at the MSPB.

It doesn’t have to be this way – so I beg you, if you know someone on the Senate Homeland Security and Government Affairs Committee, please ask them to vote quickly so we can get our MSPB back. Pretty please. Hopkins@FELTG.com