Federal Employee Appeals Can Resume as MSPB Obtains First Quorum in 5 Years
With two of the three seats on the Merit Systems Protection Board (MSPB) confirmed, federal employees who are looking for an appeal may not have long to wait for a resolution.
In a unanimous vote, the Senate confirmed nominees Tristan Leavitt— MSPB’s former general counsel—and Raymond Limon—the Interior Department’s former chief human capital officer. The Senate has yet to vote on President Biden's final nominee for the Board and Chair position, veteran federal employment attorney Cathy Harris.
As previously reported by FEDmanager, the MSPB has lacked a quorum since January 2017 and was left with any Senate-confirmed leadership when the Board’s final remaining board member’s term expired in early 2019. The Board adjudicates federal employees appeals, and retirement decisions, and produces studies on the federal merit system and human capital management issues, and reviews significant OPM actions.
Regional administrative judges at MSPB have continued to hear and make initial determination on cases before the Board. However, agencies and individuals who sought further appeal to the Senate-confirmed Board have had their cases on hold awaiting a quorum at the Board. Now Leavitt and Limon can begin to clear out the more than 3,600 case backlog that has built up in the Board’s absence.
Aside from stalled appeals, the MSPB has been limited in its ability to produce civil service reports or clarify new regulations of the Office of Personnel Management (OPM).
For years, federal employee associations and unions have urged the Senate to confirm an MSPB panel, to address the implementation of a variety of court cases, personnel policy changes, vaccination mandates, and other matters related to COVID-19 and the general federal workforce.
“The federal workforce is governed by the merit system principles. These principles include ensuring qualified individuals work in the federal government, ensuring all employees receive fair and equitable treatment," stated Bob Corsi President of the Senior Executives Association (SEA)–the association representing the Senior Executive Service (SES) and upcoming leaders in government–“Finally, with a quorum restored, the MSPB can begin providing finality to agencies and justice to employees. It can ensure taxpayer dollars are not wasted by allowing these matters to languish endlessly without resolution. It can rebuild trust."
The Professional Managers Association (PMA)–which represents the interests of managers and non-collective bargaining unit employees at the Internal Revenue Service– has continually advocated for action by the Senate on this matter.
“For too long – over five years – the MSPB has been without a quorum and unable to provide critical finality on agency personnel actions. Most importantly, the Senate’s failure to fill these vacancies have left the federal workforce without a watchdog of employee rights and left taxpayers without an important mechanism for accountability in their government. This has wasted resources and wasted time,” Chad Hooper stated, PMA’s Executive Director.
Hooper asserted that, with all of the IRS's issues, the vacancies on the MSPB were just an additional, unnecessary burden entirely on the Senate's shoulders. Hooper, like Corsi, argued the MSPB vacancies undermined employee rights intended to maintain an equitable and nonpartisan delivery of taxpayer services.
“Now that the Senate has restored a quorum, the Board can begin whittling down the 3,600-case backlog that has accumulated in the Board’s absence. This backlog is historic, unjustified, and deeply damaging to taxpayer services,” Hooper concluded.
Currently, there is not a confirmed MSPB chair. The Senate Homeland Security and Governmental Affairs Committee (HSGAC) approved all three of Biden's nominations in October, but Harris was the only one without bipartisan support. As Senate rules on committee procedures only allow nominees who won bipartisan support at the committee level to carry over from one calendar year to the next, another committee vote on Harris is necessary to move her confirmation forward.
As the Vice Chair, Limon will be acting Chair until the Senate confirm a Chair. If Leavitt and Limon split on a case outcome, the administrative judge’s determination will stand until there is a full Board to break the tie.
While working to address the backlog of cases, Leavitt and Limon promised at their nomination hearing to establish a "triage system" to address the most pressing issues first. As part of their backlog-clearing strategy, they will issue "short orders," where they can move quickly without much explanation, and plan to settle at least half of the cases.