There has been no movement on nominations for a number of positions of importance to federal employees as Congress seeks to wrap up work for the year, likely leaving most or all to be dealt with no sooner than mid-January when legislators are to return from their upcoming holiday season recess.
By that point the MSPB will have been unable to decide on appeals of rulings by its hearing officers for five full years; the agency lost its two-member quorum in January 2017 and has had no members since early 2019. In that time its hearing officers have continued to issue decisions, though, resulting in a backlog of more than 3,400 appeals.
In addition, the MSPB likely will be presented soon with challenges to firings or other serious discipline against employees who do not comply with the Coronavirus vaccination mandate unless they have an exception. (Denials of requests for exceptions for medical or religious reasons most likely would be challenged through the EEOC process, since exceptions are formally accommodations under disabilities and civil rights laws). Agencies can move from the counseling phase currently underway at many places toward more serious discipline for non-compliant employees starting in January.
While such cases first would go to hearing officers appeals from that level could quickly reach the merit board. Those cases are expected to raise important questions involving the MSPB’s standards for determining whether a penalty is appropriate—the so-called “Douglas factors”—that balance of the seriousness of the offense against considerations in the employee’s favor such as their overall work history.
The board would have a 2-1 advantage for Democrats if the three pending nominees are confirmed but the full Senate still has not scheduled a floor vote even though they cleared the Homeland Security and Governmental Affairs Committee two months ago.
Also still held up are nominees for two of the three seats on the FLRA’s governing board and for the agency’s general counsel position. The board nominations would change the party control there by extending the term of the current sole Democrat and replacing one of the current Republicans with a Democrat; the term of the other Republican has not expired.
The 2-1 split in favor of Republicans has resulted in a series of decisions in favor of management that federal unions hope to reverse with new cases. The general counsel position in turn plays a key role in deciding which cases the board will consider; the nominee for that position currently is the chief counsel to the board’s lone Democrat.
All three FLRA nominees were approved by the committee only on party-line votes, however. So was one of the MSPB nominees; the other two were approved on voice votes.
Among nominations that have not had even a committee hearing are those for OPM inspector general, a position that has had only acting officials for more than five years, and for all five seats on the TSP governing board. One seat currently is vacant while the other four are serving as hold-overs after their terms expired; one of the nominations would provide a new term for one of them.