NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LARAY J. BENTON,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
NUCLEAR REGULATORY COMMISSION,
Intervenor
______________________
2015-3004
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-13-0508-W-1.
______________________
ON MOTION
______________________
Before NEWMAN, REYNA, and STOLL, Circuit Judges.
PER CURIAM.
ORDER
On September 26, 2014, Mr. LaRay J. Benton filed an
appeal to the Federal Circuit from a decision of the Merit
2 BENTON v. MSPB
Systems Protection Board (“MSPB” or “Board”) on his In-
dividual Right of Action (“IRA”) appeal. The decision is re-
ported at Benton v. Nuclear Regulatory Commission, No.
DC-1221-13-0508-W-1,
2014 WL 5358394 (M.S.P.B. July
29, 2014). After briefing, this court dismissed the appeal
and remanded to the MSPB, for the MSPB conceded error
in its reasoning. We held that in view of this concession
the MSPB had not rendered a final decision; we remanded
to the MSPB on September 12, 2016, for further proceed-
ings. Benton v. Merit Sys. Prot. Bd., 668 Fed. App’x 889
(Fed. Cir. 2016).
On December 15, 2017, the Acting Clerk of the MSPB
responded to an inquiry from Mr. Benton as to the status
of his appeal, and stated that he should “be advised that at
this time the Board lacks a quorum and is not able to issue
any decisions that require a majority vote, including in this
matter.” App. to MSPB’s Resp. to Ct. Order 6, ECF No. 70.
In response to further correspondence from Mr. Benton,
the Acting Clerk made the same statement in a second let-
ter dated March 1, 2019. App. to MSPB’s Resp. 7. We take
notice that a quorum is still absent.
On February 25, 2019, Mr. Benton filed with this court
a “Motion for Enforcement, Civil Contempt, Sanctions, and
for Other Equitable Relief”, based on this lengthy and con-
tinuing inaction. Pet’r’s Mot. 1, ECF No. 68. He cites the
inherent power of 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 expedi-
tious disposition of cases.” Pet’r’s Mot. 5 (quoting Link v.
Wabash R.R. Co.,
370 U.S. 626, 630–31 (1982)); see also
Chambers v. NASCO, Inc.,
501 U.S. 32, 43 (1991) (“Courts
of justice are universally acknowledged to be vested, by
their very creation, with power to impose silence, respect,
and decorum, in their presence, and submission to their
lawful mandates.” (quoting Anderson v. Dunn, 19 U.S. (6
Wheat.) 204, 227 (1821))). Mr. Benton asks this court to
BENTON v. MSPB 3
exercise its inherent powers, and grant the relief he has
been requesting from the MSPB.
We requested responses from the MSPB and the Nu-
clear Regulatory Commission. The MSPB’s response, from
its Deputy General Counsel, stated that no action could be
taken on our remand because after January 7, 2017, the
Board had only a single serving member, and thus lacked
a quorum. MSPB’s Resp. to Ct. Order 6, ECF No. 70. Ad-
dressing the delay suffered by Mr. Benton, Counsel stated:
The MSPB has 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. Due to
the strict division between headquarters (second-
level review) and regional office (initial review)
cases, such a situation would be extremely unu-
sual. Because it is currently without any Board
members to direct or agree on such a plan, the
MSPB believes it lacks internal authority to trans-
fer Mr. Benton’s case from the petition for review
level to an administrative judge.
MSPB’s Resp. 7. However, Counsel offered a suggestion:
The MSPB could, however, perform such an action
if it were authorized and ordered by this Court be-
cause compliance with such an order would be en-
tirely ministerial. The MSPB takes no position on
whether the Court should issue such an order.
Id. We adopt the suggestion, for we agree that such an or-
der is appropriate under the circumstances of this case and
in connection with the remand we directed. Thus, we in-
struct the transfer of this remand from the “petition for re-
view level” to an administrative judge. Such transfer
4 BENTON v. MSPB
implements the content and purpose of our remand for fur-
ther proceedings at the MSPB.
Accordingly,
IT IS ORDERED THAT:
Mr. Benton’s motion is granted to the extent that this
appeal is ordered to be transferred to an administrative
judge for review, investigation, and resolution of the issues
for which this court remanded to the Board. Mr. Benton’s
other requests for relief are denied.
FOR THE COURT
April 30, 2019 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
