President Biden’s nominees to run the Merit Systems Protection Board (MSPB) promised during a confirmation hearing on September 22 to act quickly to reduce an unprecedented backlog of cases involving agency personnel decisions. They also acknowledged they anticipate an onslaught of appeals involving COVID-19 vaccine mandates.
The nominees represent the board’s best shot in restoring a long-awaited quorum for the first time in nearly five years. The MSPB lost its only Senate-confirmed board member in early 2019 and hasn’t had any members since March 2019.
While administrative judges have continued to hear cases from federal workers challenging agency personnel actions, more than 3,300 cases have been further appealed to the agency’s central board, where they have languished, in some cases, for years. Senators on the Homeland Security and Governmental Affairs Committee implored the nominees to act swiftly to address the backlog.
“Prolonged vacancies on the board slow the administration of justice, and, for years, vacancies on the MSPB have prevented federal employees from obtaining relief from prohibited personnel practices,” Sen. Gary Peters, D-Mich., chairman of the Senate Homeland Security and Governmental Affairs Committee, said. “If the three nominees are confirmed, the MSPB will have a quorum for the first time in nearly five years, a crucial step towards preserving the rights of federal employees and protecting whistleblowers from retaliation.”
Cathy Harris, nominated by Biden to chair the MSPB, said, “we just have to roll up our sleeves and get to work.” She promised to create a triage system to address the outstanding cases; she would solicit feedback from the staff members at agencies but would consider factors such as length of time pending and severity of punishment to determine which cases to address first.
While Tristan Leavitt – Biden’s third nominee – has served as the MSPB’s general counsel and acting chief executive, said the three board members should work through cases together to save time. Leavitt also emphasized that MSPB plays a crucial role in enabling agencies to hold employees accountable.
Additionally, nominees were also questioned on how they would respond to cases related to disciplinary actions taken against employees who refused to get the COVID-19 vaccine. However, all three nominees expressed hesitancy in answering the question, noting they did not want to pre-judge a case they were to analyze in the future.
Raymond Limon, Biden’s nominee for vice chairman of the MSPB, explained that he could not provide an answer because the administration is still sorting through the details of its vaccine mandate and “having centralized guidance would be essential to ensuring uniform enforcement.”