Fedweek

Mark Robbins, the last MSPB member, departed in 2018. It has now been four years since the three-member MSPB governing board had a quorum and was able to issue decisions, leading to a backlog of some 3,000 appeals of hearing officer decisions.

The Biden administration will have the opportunity to put its stamp on more than the usual number of positions involved with federal employment and workplace issues, although it could be some time until those positions are filled on more than an acting basis.

For the short run, the Senate likely will give top priority to the nominations of Cabinet secretaries and some other top positions, leaving lower level positions to acting officials for the interim. Among the positions likely to get early attention are the top slots at OMB. Biden has said he will nominate former Obama administration officials Neera Tanden and Jason Miller as director and deputy director for management. The latter position has a substantial impact on federal workplace policies and for much of the Trump administration was held by someone also serving as OPM director.

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The OPM director and deputy director positions also require Senate confirmation, with no formal nominations or even strong indications of who will be named. (The Biden administration has named OPM chief management officer Kathleen McGettigan as acting director.)

Also, it has now been four years since the three-member MSPB governing board had a quorum and was able to issue decisions—and nearly two years since the board has had any members. In that time, a backlog of some 3,000 appeals of hearing officer decisions has built up, although some employees instead have filed appeals directly in federal courts. Biden can name two Democrats and one Republican for those seats.

The FLRA currently has no vacancies for its three-member board but the term of one of the two Republicans expires in July, giving Biden the opportunity to replace him with a Democrat. Also vacant is the general counsel’s position, which selects unfair labor practice complaints—mostly by unions against management—for the board to decide. Numerous such complaints have built up at the FLRA in recent years as agencies carried out Trump administration bargaining policies.

One of the TSP board’s five seats is vacant and the other four are being held on holdover status. Biden will have discretion to make three nominations and the other two seats also are in the hands of Democrats since those nominees are chosen by the House speaker and Senate majority leader.

That board typically is not seen as partisan in nature although a partisan note was introduced last year when President Trump made three nominations just as the board was about to implement a long-planned expansion of the international stock I fund to cover more countries, including China. That plan was then put on indefinite hold and it remains suspended even though Trump’s nominees were not confirmed.

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