MSPB Returning After 5-Year Absence: 3,600+ Decisions Pending

The Senate has confirmed two Members for the MSPB. This means the agency will be able to start issuing decisions on the huge backlog of cases.

What Happened to the MSPB?

The Merit Systems Protection Board (MSPB) has been largely absent from the federal human resources scene for a long time. No decisions on many of the cases before the agency have been issued since 2017.

The last Acting Chairman of the MSPB was Mark A. Robbins. His term was extended one year after his term officially ended March 1, 2018 and he then was performing administrative and executive functions.

Robbins was the last member of the MSPB and his term expired on March 1, 2019. Without at least two MSPB members confirmed, the agency has not able to process appeals from federal employees seeking a decision on their employment concerns, which include appeals of removals and a number of disciplinary actions.

There has not been a quorum at the agency since January 7, 2017. That was when MSPB Chairman Susan Tsui Grundmann resigned after serving in a holdover capacity for ten months.

What Is Happening With the MSPB Now?

Nominations by President Trump were not confirmed while he was in office.

On March 1, 2022, the Senate confirmed Raymond A. Limon to be a Member of the MSPB for a seven-year term expiring on March 1, 2025.

Also, the Senate has confirmed Tristan Lynn Leavitt to be a Member of the MSPB with a term expiring on March 1, 2023.

President Biden has also nominated Cathy L. Harris to the MSPB but she has not been confirmed by the Senate.

Harris is an employment attorney nominated to Chair the MSPB, while Limon, currently the Deputy Assistant Secretary for Human Capital and Diversity and Chief Human Capital Officer at the Department of the Interior, was nominated to serve as Vice-Chair, and Leavitt currently serves as the General Counsel of the MSPB

While there will still not be full leadership at the MSPB, there will be a quorum as two of the three members will be installed in their positions. This means the agency will be able to start issuing decisions on the thousands of cases now sitting there and awaiting action.

As attorney Matthew B. Tully noted in his article on the status of nominations to the MSPB, with more than 3,600 cases now pending, “one would have to anticipate that if the nominees are passed by the Senate, it would likely take at least two years for the Board to get through the current backlog. While there is potential that a Board could get decisions out more quickly, it’s still going to take a significant amount of time to make sure that each case is being reviewed properly.”

FAQ’s From the MSPB

The MSPB has posted a list of frequently asked questions (FAQ’s) on the lack of a quorum at the agency and the lack of Board Members. There is information available in this posting that may be of interest to those with cases pending or from federal employees contemplating the filing of an appeal. With the recent nominations now confirmed, the MSPB is likely to provide more information in the near future.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47