In a show of bipartisanship, the top Democrat and Republican on a House Oversight and Reform subcommittee are calling on the Biden administration to do its part and nominate members to the Merit Systems Protection Board, the first of many steps needed to restore a long-awaited quorum.
The MSPB has been without a quorum for more than four years, and it hasn’t had a single board member for more than two. The agency itself has been operating without Senate-confirmed members. But Government Operations Subcommittee Chairman Gerry Connolly (D-Va.) and Ranking Member Jody Hice (R-Ga.) worry the board will soon become non-functional.
“We respectfully request that you prioritize the nominations of new board members,” the members said Tuesday in a letter to the President Joe Biden. “Once your nominations are made, we trust that the Senate will work quickly to confirm the qualified candidates to the MSPB and restore the board to full operations.”
Without a quorum, the board can’t issue final decisions on appeals from either an agency or employee.
There were 3,157 pending petitions for review at the MSPB at the end of February, according to agency data.
The backlog creates hardships for federal employees who have been waiting years for justice on their cases, but it may also generate financial expenses for agencies. Inevitably, the board — whenever it has Senate confirmed members — will reinstate federal employees to their previous jobs, and agencies will owe them back pay.
One former MSPB counsel estimated agencies could owe at least $60 million in back pay, a total that will only grow larger depending on the time it takes for the White House to nominate and the Senate to confirm new board members.
“The longer you wait, the ticker keeps counting,” said Jason Briefel, executive director of the Senior Executives Association.
The board’s administrative judges are still issuing initial decisions on most cases, but Connolly and Hice, as well as employee groups and attorneys representing the federal workforce, fear they won’t be able to much longer.
They named three cases currently pending in federal court, which all raise concerns over the appointment scheme for the MSPB judges. These cases threaten the board’s operations, and according to MSPB officials, the court may decide one of them, Coppola v. Department of Veterans Affairs, in the next five months, Connolly and Hice said.
“This threat exists because in the wake of the Supreme Court’s decision in Lucia v. Securities and Exchange Commission, the courts deciding these three cases may rule that AJs at the MSPB are not appropriately vested with the authorities needed to perform their duties,” the congressmen wrote. “In the event of such rulings, the MSPB would need to take action to vest the AJs with the required authority, which requires the board to assemble a quorum — something it cannot now do.”
Some agencies have already caught on to the appointment clause debate and are challenging the authority of the administrative judges based on Lucia.
As Federal News Network previously reported, administrative judges have dismissed more than 180 appeals without prejudice based on Lucia concerns as of the end of 2020.
Briefel said the Biden administration has been briefed on the MSPB backlog and is aware of the challenges pending in federal court. SEA was one of more than a dozen federal employee organizations that similarly called on the Biden administration to quickly nominate new members to the board.
“The functioning of this agency is absolutely critical to meeting the administration’s pledges to revitalize and protect the federal workforce,” the Federal-Postal Coalition said in a March 23 letter to Ambassador Catherine Russell, director of the White House Office of Presidential Personnel.
The coalition includes the American Federation of Government Employees and the National Treasury Employees Union, as well as the National Active and Retired Federal Employees (NARFE) Association and Federal Managers Association.
“Without a functioning MSPB, thousands of federal employees, including critical federal whistleblowers, are denied justice at a costly expense to taxpayers,” the coalition said.