Groups Renew Push to Finally Make Federal Employee Appeals Board Fully Functional

A coalition of more than two-dozen federal employee and good government groups are calling on President Biden to quickly fill the seats on a panel key to enforcing civil service protections, which has operated without any members for more than two years. 

The White House should take “urgent action” to fill the vacancies on the Merit Systems Protection Board, an independent agency that adjudicates appeals of personnel actions agencies take against employees, the Federal-Postal Coalition members said in a letter to Catherine Russell, director of the White House’s Office of Presidential Personnel. MSPB has operated without a quorum for more than four years, leading to an unprecedented backlog of more than 3,000 cases pending before the agency’s central board. 

The empty board seats are “crippling the agency’s ability to enforce justice under the law for employees and provide clarity on personnel action for agencies,” the groups wrote. The negative impact is felt not just by employees, they said, but by agencies too who typically win an overwhelming proportion of the appeals that make their way to the central board. 

The issue is “definitely on the radar” at the White House, according to Jason Briefel, executive director at the Senior Executives Association who helped organize the letter. The groups are looking to ensure it is a priority issue after receiving an acknowledgment of the problem during the transition. 

“This isn’t one that can be left till later,” Briefel 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 Trump renominated Dennis Kirk to sit on the board shortly before leaving office, but Biden quickly rescinded the nomination after his inauguration. MSPB itself has long bemoaned its lack of a quorum, noting it has far-ranging negative impacts on its mission. 

“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,” Tristan Leavitt, the agency’s executive director, 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 leaving 3,000 appeals 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 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. 

As the Federal-Postal Coalition noted in its letter, MSPB’s completely vacant central board leaves it unable to intervene in cases in which whistleblowers are facing potential retaliation. The agency also anticipated 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, punted on issuing a ruling on those cases until a federal court could intervene. 

Biden recently named an acting general counsel for the Federal Labor Relations Authority, filling a vacancy many of the groups in the Federal-Postal Coalition had also prioritized. That could demonstrate the White House is starting to prioritize federal workforce-related personnel after it nominated Kiran Ahuja to serve as Office of Personnel Management director last month. Still, stakeholders are eager to see Biden match his rhetoric praising the civil service with action to support it. 

“We can’t protect and support our federal workforce unless the system is operational,” Briefel said. “The system is not operational.”