President Trump has nominated to head the Office of Special Counsel Henry Kerner, a former career prosecutor who was an investigative staff member of the House Oversight and Government Reform Committee under chairmen Darrell Issa, R-Calif., and Jason Chaffetz, R-Utah, and also served as the Republican staff director of a Senate investigations subcommittee for Sen. John McCain, R-Ariz., when the Senate was under Democratic control. Most recently, he was a vice president of the Cause of Action advocacy group.

He would replace Carolyn Lerner, who has been serving on a hold-over basis since her term expired last year.


Following the recent nomination of George Nesterczuk–who has been involved with federal personnel matters in a number of roles over many years under Republicans–to head OPM, the most notable vacancy in agencies overseeing the federal workforce is at the MSPB. Two of its three seats are open, meaning that the board cannot hear appeals from decisions by the agency’s hearing officers unless at least one more is filled.

For the meantime, the House has joined the Senate in passing passed S-1083, to allow the MSPB to order longer “stays” of personnel actions at the request of the Special Counsel, when the MSPB lacks a quorum. OSC typically asks for such delays when it is investigating whether an action, typically discipline, resulted from one of the “prohibited personnel practices” such as retaliation for whistleblowing. With only one member, the MSPB currently can issue an initial 45-day stay but not any extension while the OSC continues to investigate.

The two other agencies that handle federal employment-related disputes, the FLRA and the EEOC, also have vacancies but do have quorums. Two of the three FLRA seats are filled as are four of the five EEOC seats.