On April 5, Representatives Gerald Connolly (D-VA) and Jody Hice (R-GA) sent a letter to President Biden urging him to nominate Board members to the Merit Systems Protection Board (MSPB).
The MSPB is “an independent, quasi-judicial agency in the Executive branch,” and according to the Representatives’ letter, it “protects merit system principles and guards federal employees against prohibited personnel practices.” The MSPB also “issues final rulings on whistleblower retaliation cases filed by federal employees under the Whistleblower Protection Act (WPA), the main law protecting federal employee whistleblowers from retaliation,” according to previous WNN reporting.
In their letter, the Representatives explain that the MSPB needs to be led by a board of three qualified members who have been appointed by the President and confirmed by the Senate. No more than two members of the MSPB can be from the same political party. However, the letter points out that since January 2017, “the Board has lacked a quorum to perform its responsibilities. “Since March 1, 2019, the Board has been without a single board member.”
“Because of these vacancies, the MSPB is unable to issue decisions on petitions for review from federal employees who allege that their agencies have unlawfully acted against them,” the letter states. Reps. Connolly and Hice mention the backlog of over 3,000 cases at the MSPB — 774 of these cases being whistleblower retaliation cases — that have been sitting in limbo with no action from the agency in sight. In January, WNN filed a Freedom of Information Act (FOIA) request and the MSPB confirmed that at the time, there were 3118 federal employee cases at the Board.
The Representatives note that “roughly 60 administrative judges (AJs)” who work for the MSPB have been able to issue initial decisions “on federal employee appeals to the MSPB,” providing “some measure of relief” for employees who may have ongoing cases pending at the Board.
However, they write that “[t]hree cases pending in the federal court system…threaten to force the cessation of AJ operations entirely” due to the Supreme Court Lucia v. Securities and Exchange Commission decision. The letter explains that the courts deciding the three aforementioned cases may rule that “the MSPB are not appropriately vested with the authorities needed to perform their duties.” If these rulings pass, the Board would need to “assemble a quorum,” something it is currently unable to do.
“In short, if the MSPB lacks a quorum when the courts render their decisions in the cases listed above, the MSPB is at risk of having to essentially cease its operations,” the letter concludes. “To prevent this outcome…we respectfully request that you prioritize the nominations of new Board members.” Reps. Connolly and Hice, the former being the Chairman of the Subcommittee on Government Operations and the latter being a Ranking Member on the same Subcommittee, are the highest-ranking Democratic and Republican members of the Subcommitee. Both Representatives express confidence that the Senate would “work quickly to confirm the qualified candidates,” which is critical for the MSPB to function as intended.
On February 23, Rep. Connolly introduced the Merit Systems Protection Board Empowerment Act of 2021. The Act would reauthorize the MSPB through 2026 and also require AJs “and other MSPB officials to undergo whistleblower engagement training.” Additionally, the Act would expand the Board’s “research and study authority.”