As the Biden administration passes its first 100 days in office, federal employees are wondering if and how this administration will turn around the record-setting four years of stagnation at the Merit System Protections Board (MSPB). There are three board member positions at the MSPB, and two of those seats will need to be occupied in order to achieve a quorum. The Board has lacked a quorum since January 2017, and many federal employees have been left without any equitable way to appeal their cases and are left without one of their few protections against abuse by agency management. This is the first time the MSPB has not had any sitting members, and aside from this instance, the only other time the board lacked quorum was back in 2003.
With the last MSPB member’s term having ended in March 2019, we have officially crossed the two-year mark since the Board had an active Senate confirmed member. Luckily for those 3,000+ employees with cases stuck in backlog, President Biden has recently nominated Cathy Harris—a member of the Metropolitan Washington Employment Lawyers Association (MWELA)—to be Chair of the MSPB. While the nomination is still yet to be confirmed by the Senate, this is the first step in establishing the necessary quorum needed to push forth these backlogged cases.
When staffed, the MSPB is able to hear appeals of agency actions, including those previously heard by the Civil Service Commission and appeals arising from new causes of action created by the Civil Service Reform Act (CSRA). During the Trump Administration, none of the previous nominations made it past the Senate which has created the current backlog. This has left many federal employees in a difficult position, as they have to face the tough decision of whether or not they should keep waiting in the Board’s backlog of cases, or try and appeal at the Federal Circuit. While federal employees can appeal directly to the U.S Court of Appeals, it isn’t recommended unless there is a clear judicial error.
The positive movement of Cathy Harris’ nomination to Chair of the MSPB is a step in the right direction for federal employees. Judging from the fact that the White House and Senate are controlled by Democrats, many remain hopeful that the confirmation process will move quickly with Harris. However, if the MSPB continues to remain without quorum for much longer, parties involved might begin to voice their concerns louder, as they try to finally restore the federal employee appellate process.
Ryan Green is a Partner at Tully Rinckey PLLC’s Washington, D.C office. Ryan represents employees on a range of employment and labor issues, including discrimination, retaliation, harassment, equal pay and adverse action claims. In addition to representing federal employees before the Equal Employment Opportunity Commission (EEOC) and Merit Systems Protection Board (MSPB), he has developed an appellate practice; often appearing before the EEOC’s Office of Federal Operations and full MSPB Board. He can be reached at (202)787-1900 or at email@example.com.