The federal employee appeals board is finally functional again

Anna Moneymaker/Getty Images

Senate takes action on MSPB nominees for the first time in five years.

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 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.

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.