Without a quorum on the Merit Systems Protection Board, the panel is unable to issue decisions for appeals—leaving thousands in limbo and a critical part of the civil service system non-functional.
The Merit Systems Protection Board passed a new and unwanted milestone last week—five years without a quorum.
The quasi-judicial agency, charged with protecting federal employees against improper employment actions like favoritism, discrimination and whistleblower retaliation, has been without any members on its three-person board since spring 2019. The last time it had a quorum was January 8, 2017, according to the Congressional Research Service.
MSPB said in its own budget justification for the current fiscal year that it's experiencing the "most dire crisis since it was established." The agency has never before had no members and has only ever experienced a brief lack of a quorum in 2003.
Administrative judges at MSPB can issue initial decisions, but if an agency or employee wants to file a petition for review of a decision, the board can't issue a decision without a quorum. This has left MSPB with a backlog of over 3,400 pending petition for review cases as of September 2021.
Board members are nominated by the president and confirmed by the Senate.
President Joe Biden's nominees were advanced out of the Senate Homeland Security and Governmental Affairs Committee in October, but haven't been put to a vote since, despite pressure from outside groups. The office of Senate Majority Leader Chuck Schumer (D-N.Y.) did not respond to a request for comment.
Biden had to renominate his pick for MSPB chair, Cathy Harris, at the start of 2022 because of Senate rules on nominees that haven't been decided on at the end of an annual session. The Senate held over the other two picks for MSPB, but Harris will have to be voted through committee again.
At her confirmation hearing, Republican senators expressed doubt about Harris' ability to chair the board objectively, despite her history as an attorney specializing in federal workforce law. She apologized for tweets Republicans characterized as partisan and said she would be a nonpartisan leader. Two other nominees garnered bipartisan support, but Harris advanced on a party line vote.
An aide to committee chairman Sen. Gary Peters (D-Mich.) told FCW that "Senator Peters supports the nominees. He's working to confirm them as quickly as possible, and it could be through an expedited process."