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A Functioning Federal Employee Appeals Board May Finally Be in Sight After Biden Names Second Nominee

MSPB hasn't had a quorum in more than four years, but Republicans may push for further delay until a member of their party is nominated.

President Biden on Wednesday nominated an Interior Department career official to sit on the panel tasked with enforcing civil service protections, creating an opening for the agency to finally resume normal operations after years of dysfunction. 

Biden tapped Ray Limon, currently the deputy assistant secretary for human capital and diversity at Interior, to serve as vice chair of the Merit Systems Protection Board. Limon’s nomination follows the president’s selection of Cathy Harris, an attorney with experience in federal employment law, to chair the board. The confirmation of both Limon and Harris would restore a quorum at MSPB for the first time since January 2017. The board has not had any Senate-confirmed members on its three-person central board since February 2019. 

MSPB has long bemoaned its lack of a quorum, noting it has far-ranging negative impacts on its mission. The board is facing an unprecedented backlog of more than 3,000 cases pending before its central panel. 

“While MSPB employees have been remarkably focused in continuing the agency’s work despite the challenges, there is no question we look forward to the arrival of new board members,” Tristan Leavitt, the agency’s executive director, wrote in January in MSPB’s annual report. “In order to fully perform its mission and successfully face new challenges that lie ahead, MSPB needs a board quorum.”

In addition to the appeals stuck in a holding pattern, MSPB cannot issue its normal reports on the civil service or clarify new laws or Office of Personnel Management regulations for its administrative judges. MSPB noted it has yet to rule on the impact of applicant assessments and human capital review changes, for example. Recent court rulings and statutory changes affecting civil service policy “are likely to affect MSPB’s appeals workload, the need to change MSPB procedures, and to require additional MSPB resources,” the agency said.

Limon is a member of the Senior Executive Service and previously served at the State Department in civil service human resources management and as the chief human capital officer at AmeriCorps. He has chaired the Small Agency Human Resources Council and worked at OPM as the Office of Administrative Law Judges director. 

An aide to the Senate Homeland Security and Governmental Affairs Committee, which will have to sign off on Biden’s nominees, pledged swift action. 

“Our goal is to set a hearing as quickly as possible so MSPB can have a fully functioning board again,” the aide said. 

Typically, MSPB nominees are moved as a package on a bipartisan basis. Only two appointees for the three slots can be members of the same party, which may give Republicans cause to hold up Limon and Harris’ nominations until their selection can also receive a vote. President Trump previously nominated three individuals to serve on the board, but they never received a vote on the Senate floor despite two of them winning approval at the committee level. Trump renominated Dennis Kirk to sit on the board shortly before leaving office, but Biden quickly rescinded the nomination after his inauguration.

Federal employee and other groups have for years pushed for a confirmed MSPB panel, with some observers noting agencies typically win before the board and therefore it would be in the government’s interest to move the 3,000 backlogged cases through the system. Whistleblower advocates have also decried the vacancies, as the empty central board has left the agency unable to intervene in cases in which whistleblowers are facing retaliation. 

In the meantime, the challenges awaiting board members once confirmed are only likely to grow. The agency is anticipating a potential uptick in appeals as a result of the COVID-19 pandemic, noting it could lead to reductions in force or prohibited personnel practices resulting from policies over telework eligibility, returning to offices and safety protocols. Toward the end of the Trump administration, agencies—citing a 2018 Supreme Court ruling—began arguing the board's administrative judges did not have the authority to rule on cases due to the manner in which they were appointed. Some judges, citing the lack of guidance from MSPB's non-existent central board, punted on issuing a ruling on those cases until a federal court could intervene.

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