Biden Finally Nominates a Full Slate to Long-Vacant Federal Employee Appeals Board

President Biden on Thursday put forward a third nominee to serve on the panel tasked with enforcing civil service protections, potentially allowing for the Senate to move on all three of the pending board members and put an end to the years of dysfunction the panel has endured.

Biden tapped Tristan Leavitt, a seasoned veteran on civil service issues, to fill the third and final vacancy at the Merit Systems Protection Board. Leavitt has served as general counsel at MSPB and as the agency’s de facto head ever since it lost its only Senate-confirmed board member in early 2019. MSPB has not had a quorum on its board since January 2017. 

Biden previously nominated Ray Limon, currently a human resources official at the Interior Department, to sit on the board and Cathy Harris, an attorney with experience in federal employment law, to serve as its chair. The Senate has yet to act on either of those nominations, likely because they both came from the same party. Typically, MSPB nominees are moved as a package on a bipartisan basis. Only two appointees for the three slots can be members of the same party, which may have given Republicans cause to hold up Limon and Harris’ nominations until their selection can also receive a vote. Leavitt, who worked for Republicans in the House and Senate before joining the Office of Special Counsel and MSPB, would allow the Senate to move a bipartisan slate. 

“Our goal is to set a hearing as quickly as possible so MSPB can have a fully functioning board again,” an aide to the Senate Homeland Security and Governmental Affairs Committee, which will have to sign off on Biden’s nominees, said in June. 

MSPB officials, including Leavitt himself, have long bemoaned the board's lack of a quorum, noting it has far-ranging negative impacts on its mission. The board is facing an unprecedented backlog of more than 3,000 cases pending before its central panel.

“While MSPB employees have been remarkably focused in continuing the agency’s work despite the challenges, there is no question we look forward to the arrival of new board members,” Leavitt wrote in January in MSPB’s annual report. “In order to fully perform its mission and successfully face new challenges that lie ahead, MSPB needs a board quorum.”

In addition to the appeals stuck in a holding pattern, MSPB cannot issue its normal reports on the civil service or clarify new laws or Office of Personnel Management regulations for its administrative judges. MSPB has noted it has yet to rule on the impact of applicant assessments and human capital review changes, for example. Recent court rulings and statutory changes affecting civil service policy “are likely to affect MSPB’s appeals workload, the need to change MSPB procedures, and to require additional MSPB resources,” the agency said.

President Trump previously nominated three individuals to serve on the board, but they never received a vote on the Senate floor despite two of them winning approval at the committee level. Trump renominated Dennis Kirk to sit on the board shortly before leaving office, but Biden quickly rescinded the nomination after his inauguration.

Federal employee and other groups have for years pushed for a confirmed MSPB panel, with some observers noting agencies typically win before the board and therefore it would be in the government’s interest to move the 3,000 backlogged cases through the system. Whistleblower advocates have also decried the vacancies, as the empty central board has left the agency unable to intervene in cases in which whistleblowers are facing retaliation.

In the meantime, the challenges awaiting board members once confirmed are only likely to grow. The agency is anticipating a potential uptick in appeals as a result of the COVID-19 pandemic, noting it could lead to reductions in force or prohibited personnel practices resulting from policies over telework eligibility, returning to offices and safety protocols. Toward the end of the Trump administration, agencies—citing a 2018 Supreme Court ruling—began arguing the board's administrative judges did not have the authority to rule on cases due to the manner in which they were appointed. Some judges, citing the lack of guidance from MSPB's non-existent central board, have punted on issuing a ruling on those cases until a federal court could intervene.