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Key positions at the MSPB and the FLRA will remain vacant for an undefined as the Senate did not take up nominees to fill those positions before recessing until early January—a time when the impeachment process will consume much of its attention.

The MSPB has been unable to issue decisions in disciplinary appeals and other matters since January 2017 due to a lack of a quorum on its three-member governing board; the remaining member’s term expired earlier this year leaving it with no members. Nominees for all three seats cleared the committee level months ago but Republican leaders of the Senate have not brought them up for floor voting. It’s been estimated that the backlog of more than 2,000 cases would take a year or more to work through.


Further, conferees on the now-signed DoD authorization bill dropped House language that would have allowed the MSPB general counsel—currently running the agency on an acting basis as the top official—to order “stays” of up to 45 days of personnel actions that appear to be violations of merit principles, such as reprisal against a whistleblower.

Meanwhile, while the FLRA has a full board in place, the general counsel’s position has been vacant for more than two years. A nominee who cleared the committee level for that position also has not reached a floor vote, in this case because of Democratic opposition.

That position is the one that decides whether complaints are brought before an administrative law judge for a decision. There has been no announcement of the backlog there but it too could take a long time to work through given the large number of complaints that unions have filed in that period against agency actions under the administration’s executive orders restricting bargaining and grievance procedures.

In the latest major complaint, the AFGE contends that the VA has failed to meet obligations to bargain over implementation of those orders. A group of 70 House Democrats recently wrote to the VA to urge it to fully bargain over those policies. Meanwhile, the EPA has returned to bargaining with the AFGE after an FLRA investigation found merit in the union’s complaints about policies the agency imposed under those orders; however, that finding was not brought to a formal hearing because of the general counsel vacancy.