Fedweek

Washington DC - Aug 2018: Mark Robbins looks through stacks of legal cases piled on his desk. Robbins was the last member of the MSPB and departed in 2018 to become OPM general counsel. The board has had no members since, and is currently saving a backlog of some 3,000 appeals.

The bipartisan leaders of the House government operations subcommittee have called on President Biden to make nominations to the three seats on MSPB governing board, which has lacked a quorum to issue decisions for more than four years and has had no members for more than two.

A letter to the White House notes that the agency’s hearing officers have continued to issue decisions, which “has provided at least some measure of relief to employees who may be victims of adverse agency actions.” But the board’s inability to review such decisions when they are appealed has led to a backlog of more than 3,000 cases, wrote Reps. Gerald Connolly, D-Va., and Jody Hice, R-Ga.

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They also pointed to cases pending in the federal court system, which could be decided soon, that may call into question the legality of the hearing officer decisions, based on a 2018 U.S. Supreme Court ruling involving the appointment of such officials. Depending on the outcome of those cases, the MSPB may need to take action to vest them with the required authority, “which requires the Board to assemble a quorum—something it cannot now do.”

“In short, if the MSPB lacks a quorum when the courts render their decisions, the MSPB is at risk of having to essentially cease its operations,” they wrote, adding that “we trust that the Senate will work quickly to confirm the qualified candidates to the MSPB and restore the Board to full operations.”

Biden would nominate one Republican and two Democrats, one of whom would be designated to become chairman. President Trump’s nominees to fill the seats stalled after passing the Senate committee level, reportedly because of opposition by some Senate Democrats to one or both of the two Republicans he named.

Although the parent Oversight and Reform often reflects the deep partisan divide in the House in general, the letter is the latest in a series recent bipartisan actions including a commitment to focus on the recent GAO high-risk list report and pressing agencies on cooperation with inspector general investigations.

The Federal-Postal Coalition, consisting of two dozen unions and other groups, recently similarly urged the White House to fill the MSPB seats quickly.

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