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The MSPB faces an uncertain future despite approval last week by a Senate committee of nominees to fill two of the governing board’s three seats just ahead of the scheduled departure of the lone member.
The Senate Homeland Security and Governmental Affairs Committee’s approval of the two nominees was a major step toward restoring a quorum the governing board has lacked for two years—a period in which a backlog now numbered above 1,900 cases has built up. With two members the board could again start considering appeals of hearing officer decisions although if they disagreed on the outcome a third would be needed to act as tie-breaker.
However, committee chairman Ron Johnson, R-Wis., has since said that he will not bring just the two to a Senate floor vote, preferring to fill all three board seats at once. A nominee for the third seat withdrew just before the committee vote when it appeared that his nomination might be rejected and stop action on the other two in the process. Getting a replacement to the final voting stage likely would take a number of months.
The term of the sole member of the board since January 2017, Mark Robbins, has already expired and he has been serving on a temporary extension, which expires February 28. He also has been serving concurrently as general counsel of OPM since late December.
Having no members on the governing board would be unprecedented and the potential impact is uncertain; there have been suggestions that other agency functions including hearing officer decisions would have to cease. Legislation has been introduced (HR-1235) to allow a further extension for Robbins of up to another year, although that measure also would require that he give up the OPM position while serving at the MSPB. With Congress out of session this week, keeping him in place would require approval of the bill next week.