The Federal Employee Appeals Board is Finally Functional Again
This article features Government Accountability Project’s Legal Director, Tom Devine, and was originally published here.
The panel tasked with enforcing civil service protections has regained a governing quorum after the Senate approved two of President Biden’s three nominees on Tuesday, putting an end to five years of dysfunction.
Both Tristan Leavitt and Raymond Limon won unanimous support in Senate voice votes, giving the Merit Systems Protection Board confirmed members of its central panel for the first time since 2019. The board needs at least two of its three slots filled to have a quorum and hear appeals, which has not occurred since January 2017. Cathy Harris, Biden’s third and final nominee for the board, is still awaiting a vote in the Senate.
The quasi-judicial agency has a backlog of more than 3,500 cases pending before its central board, which the nominees have pledged to quickly address through an expedited process. Regional administrative judges at MSPB have continued to hear cases of alleged violations of prohibited personnel practices by federal agencies, but agencies or individuals that have sought further appeal to the board’s presidentially appointed, Senate-confirmed central panel have seen their causes languish—in some instances, for years.
Leavitt is a seasoned veteran on civil service issues, having worked for Republicans in the House and Senate before joining the Office of Special Counsel and then MSPB as the agency’s general counsel and, since 2019, its de facto director. The Senate moved his nomination in conjunction with Limon, currently a human resources official at the Interior Department, to ensure a bipartisan pairing.
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
“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 MSPB’s annual report last year. “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 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 3,500 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. Last month, more than 100 civil society organizations wrote to Senate leadership imploring the chamber to move on Biden’s nominees. The groups noted the vacancies have created “perverse incentives,” as agencies have appealed cases to the board knowing they would “sit unresolved.” Additionally, they said, potential payouts for back pay in cases of improper firings or demotions are continuing to rise.
“It should raise your profound concerns that the board’s lack of a quorum due to lack of Senate-confirmed members leading it is jeopardizing the existence of meaningfully enforceable employment rights for millions of Americans, including whistleblowers,” the groups wrote. “That is contrary to our shared values and our most cherished principles about how our government should work.”
In recent years, following court decisions, personnel policy changes and vaccine mandates and other issues related to the COVID-19 pandemic, the workload awaiting the new members has only grown. 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.
MSPB will still be without a confirmed chairman, as the Senate has delayed a vote on Harris. While the Senate Homeland Security and Governmental Affairs Committee approved all three of Biden’s nominees in October, it was forced to revote on Harris’ nomination last month as she was the lone member of the slate to not win bipartisan support. Senate rules only allow nominees who won bipartisan support at the committee level to carry over from one calendar year to the next. Harris, an attorney with extensive experience in federal employment law, faced sharp questioning and rebukes from Republicans during her confirmation hearing for partisan tweets she posted disparaging some conservatives.
“We have to treat each federal employee that comes before MSPB the same and through her very partisan statements, Ms. Harris has generated doubt as to whether she can meet that standard,” Sen. Rob Portman, R-Ohio, the top Republican on the committee, said before voting against Harris last year.
Senate Democrats are still planning to move forward with Harris’ nomination, according to an individual in discussions with leadership, but are waiting until all members of their party are back in Washington to ensure she is confirmed.
Tom Devine, legal director for the Government Accountability Project, thanked Senate Majority Leader Chuck Schumer, D-N.Y., for his leadership in getting the two nominees confirmed, but called for further action.
“Just like a body needs a head, a government board needs a chair to lead,” Devine said. “The Senate’s work is not done.”
In the meantime, Leavitt and Limon have pledged to work quickly to address the case backlog, promising a “triage system” to address the most pressing cases first. They plan to issue “short orders,” where they can move quickly without offering much in the way of explanations, and said they hoped half of the backlogged cases could be settled.