MSPB to update rules to make operations smoother without a quorum

The Merit Systems Protection Board is set to both propose and implement new rules aimed at making it easier for the agency to maintain operations in situations where the adjudicative body atop the agency lacks a quorum.

For a period of five years from 2017 through 2022, the MSPB lacked a quorum, preventing the agency that hears appeals of adverse personnel actions in the federal government from issuing decisions and hamstringing other operations. The extended absence of Senate-confirmed appointees atop the agency led to a record backlog of 3,500 cases when lawmakers finally OKed the nominations of two board members in March 2022.

But at least some of the hangups that the agency encountered during its half-decade rudderless period will no longer be a problem if the agency goes without Senate-confirmed leadership. That’s because an interim final rule slated for publication in the Federal Register Monday updates the agency’s internal operating procedures to allow some actions to take place without a quorum.

“During the board’s inquorate status between 2017 and 2022, the board encountered numerous scenarios which under existing regulation or policy required board vote, but which were unable to be processed without a quorum,” MSPB wrote. “These included scenarios such as decisions finalizing settlements of appeals reached after an initial decision had issued, or requests for further development of the record by an administrative judge after an initial decision had issued. The board is implementing this modification in order to expedite processing in certain scenarios in the event that it is again unable to act due to a loss of quorum in the future.”

Under the new regulations, a lone board member would be able to tackle some of this work, and in the absence of any Senate-confirmed MSPB member, staff can work on these matters “to the limited extent necessary to facilitate final decision-making by a future quorum.”

Though the new rules’ most notable changes are in response to the MSPB’s years-long time without permanent leadership, the filing is the culmination of an effort that began in 2019 to review all of the agency’s internal regulations. As such, there are number of other minor changes to the agency’s internal operations included as well, including stipulating that examples listed within the agency’s regulations are “illustrative” examples, rather than binding interpretations of policy, clarifying when an MSPB’s decision becomes final, as well as simplifying how agency staff can process petitions for review of adverse personnel actions.

Though the rule will take effect on Oct. 7, MSPB officials are still encouraging members of the public to weigh in via a 60-day comment period.

“While these amendments are being issued immediately as interim final rules, the board still requests that all stakeholders or other interested individuals provide their views on the amendments,” the agency wrote. “The board also requests additional comments on any other aspect of its regulations that stakeholders or other interested individuals feel need amending. The board will thoroughly consider all input and respond to all comments as necessary.