BY: JARED ZWETTLER, Junior Staffer

The Merit Systems Protection Board (the Board), a quasi-judicial executive branch entity, plays a critical role in the federal government by providing employees and agencies with an avenue to appeal Administrative Judge decisions on adverse actions taken against federal employees. The Board largely handles cases involving allegations of Prohibited Personnel Practices (PPPs) brought by federal employees. PPPs encompass an array of conduct ranging from discrimination, to coercive political activity, to nepotism. The Board exists to ensure that federal employees have a way to challenge adverse actions that arise out of PPPs. Independent investigative organizations, such as the Office of Special Counsel, can also investigate PPP allegations and request the Board take action to resolve the issues. These prohibitions also help to protect whistleblowers attempting to shed light on unlawful or unethical conduct.

“For unrepresented litigants, increasing accessibility to e-filing systems makes institutions like the Board more equitable. By centralizing the functions of older systems, the Board has provided a more straightforward path through the appeals process for employees filing claims pro se to litigate their claims.”

The Board was created by the Civil Service Reform Act (CSRA) of 1978. The Board replaced part of the old Civil Service Commission that resolved disputes between federal employees and agencies. The Board’s mission is to “Protect the Merit System Principles and promote an effective Federal workforce free of prohibited personnel practices.” To execute this mission, the Board assigns an Administrative Judge to hear employee appeals from adverse actions taken by an agency or supervisory employee. If either party is dissatisfied with the outcome of the appeal, then the litigant may file a Petition for Review with the Board. A Petition for Review can be further appealed to the Federal Circuit, or another applicable court, if a party disagrees with the Board’s conclusion.

On January 7, 2017, the Board lost its quorum and could no longer hear Petitions for Review from any party dissatisfied with an Administrative Judge decision. The Board remained without a quorum as the Senate declined to take adequate steps to confirm the nominees promptly, during both the Trump and Biden administrations. The Board is a critical intermediary step in the appellate process for federal employees challenging adverse actions. During the five years that the Board did not have a quorum, federal employees were unable to have their Petitions for Review heard, leaving some largely without recourse for AJ decisions that went against them. The Board regained a quorum on March 3, 2022, which allowed it to conduct business once again. However, during the intervening period, 3,793 cases accumulated that the Board needed to hear. The Board made key policy changes, including rebuilding its electronic filing (e-filing) system, that allowed it to resolve the case backlog faster. Going forward, the new e-filing system should help employees resolve disputes more efficiently.

During the first 18 months after the Board regained a quorum, it resolved 50% of the case backlog. This means that the Board decided 111 cases per month, on average, over this period. The Board was fully staffed with three members for five months out of the fiscal year 2023. During the remainder of the year, the Board only had two members, which is the minimum necessary to maintain a quorum.

The Board’s decisions then stalled for two months—between September 9, 2023, and November 1, 2023—while the old e-filing system was taken offline and the new system was implemented. Once the Board started issuing decisions again, the pace of decisions increased nearly twofold. From the implementation of the new e-filing system to the present day, the Board has been issuing 212 decisions per month, compared to the 111 cases per month the Board handled under the old e-filing system. During fiscal year 2024, the Board only had a full three members for four months. Today, over 94% of the case backlog has been eliminated.

Since the Board had roughly the same number of members in FY 2023 with the old e-filing system as it did in FY 2024 with the new system, there must be a separate cause that generated the increase in the number of cases resolved per month. One possibility is that new members familiarized themselves with Board processes and procedures, allowing them to resolve disputes faster. Alternatively, the priorities of the Board members may have shifted, prioritizing the backlog of cases after the new system was implemented more than before. However, these factors likely do not account for the entire impact. No new board members were added around the time that the e-filing system was updated and the backlog has long been a priority, evidenced by the routine updates provided by the Board on the backlog since a quorum was restored. The revised e-filing system provides a logical explanation for why the volume of cases the Board processed increased significantly after November 1, 2023.

The Board emphasized that the goals of the new system were to increase efficiency and consolidate older systems. With respect to efficiency, it appears that the change had a positive impact on the number of cases that the Board could handle each month. The evidence shows that the intervention assisted in some capacity. The Board’s statements about the e-filing system, along with the data on the number of disputes resolved, both show that the e-filing system had a positive impact on the speed at which cases are resolved.

For unrepresented litigants, increasing accessibility to e-filing systems makes institutions like the Board more equitable. By centralizing the functions of older systems, the Board has provided a more straightforward path through the appeals process for employees filing claims pro se to litigate their claims. For those who are unable to afford an attorney, this accessibility could be pivotal in ensuring that their Petitions for Review are heard. Adverse action cases matter a great deal for those who are unable to afford an attorney, since the outcome of such actions can be as severe as termination or suspension, consequences which are acutely felt by federal employees who lack the resources to obtain counsel. With efficient and user-friendly systems, employees can promptly resolve workplace disputes and get back to work quickly. Changes in policies and procedures, like e-filing, often can make it easier and faster for unrepresented persons to navigate the litigation process.

The impacts of procedural e-filing changes should be considered closely. The e-filing practices of quasi-judicial and judicial bodies can have profound impacts for litigants by saving time and costs, and by increasing accessibility. The Merit Systems Protection Board, by clearing its backlog of cases faster under a new and improved e-filing system, has shown that policy changes can speed up litigation, resolving disputes faster and reducing costs for employees and agencies.