At long last, on March 4, 2022, quorum was finally restored to the Merit Systems Protection Board (MSPB).
The MSPB plays an important role in safeguarding the federal merit systems. Generally speaking, most non-probationary Appropriated Fund federal employees of the Executive Branch are permitted to appeal major adverse employment actions taken against them, such as demotions and removal actions, to the MSPB. After having their appeal heard and receiving an Initial Decision from an MSPB Administrative Judge, a party disagreeing with the Initial Decision is permitted to further appeal to the full Board, comprised of three Members nominated by the President and confirmed by the Senate. Even if the employee ultimately prevails in her initial appeal, if the Agency refuses to comply with Administrative Judge’s decision, the full Board ultimately has oversight to ensure and enforce an Agency’s required compliance measures.
However, without a quorum, the MSPB was unable to issue any new decisions, leaving thousands of current and former federal employees who suffered adverse actions that had been appealed to the Board in a years-long holding status awaiting final decisions on their appeals.
On March 1, 2022, the Senate confirmed Vice Chair Raymond Limon and Member Tristan Leavitt to the MSPB, and they were sworn in as Board members on March 4, 2022. The MSPB is still without a third member, which is the Chairperson position. President Biden has nominated Cathy Harris as Chair of the MSPB, but her nomination is still pending before the Senate.
With two of the three Board member positions now filled, the MSPB can finally start issuing decisions again for the first time since January of 2017. Any precedential decisions on which the two members disagree will likely require a tie break and therefore will have to continue to wait until the third member slot is filled for a decision to be issued. Additionally, according to the MSPB’s website, “It will take time for the Board members to receive necessary training and begin reviewing and voting on cases and for the Board’s administrative staff to issue the decisions in these cases.” Hopefully, for the sake of the thousands of appellants waiting for closure and resolve, the issuance of decisions will begin sooner rather than later.