MSPB to update rules to improve quorum-free operations

The Merit Systems Protection Board is expected to propose and implement new regulations that will make it easier for the agency to remain operational in situations where the agency’s top adjudicating body does not have a quorum.

For a five-year period from 2017 to 2022, the MSPB lacked a quorum, preventing the agency that hears appeals of adverse personnel actions in the federal government from making decisions and hampering other operations. The prolonged absence of Senate-confirmed appointees at the top of the agency led to a record backlog of 3,500 cases when lawmakers finally approved the nominations of two board members in March 2022.

But at least some of the problems the agency has faced during its half-decade without a helmsman will no longer be a problem if the agency does without Senate-confirmed leadership. That’s because interim final rules are set to be published in Federal Register The agency’s internal operating procedures will be updated on Monday to allow some activities to be conducted without a quorum.

“During the 2017-2022 board inquorate period, the board encountered numerous scenarios that required a board vote under applicable law or policy but that could not be processed without a quorum,” the MSPB wrote. “These included scenarios such as decisions finalizing appeals decisions reached after the original decision was issued or requests for further development of the record by an administrative judge after the original decision was issued. The board is implementing this modification to expedite processing in certain scenarios in the event that it is again unable to act due to a loss of quorum in the future.”

Under the new rules, one board member will be allowed to handle part of this work, and in the absence of any Senate-confirmed MSPB member, staff will be allowed to work on these matters “to the limited extent necessary to facilitate final decisions by a future quorum.”

While the most significant changes in the new regulations are a response to the MSPB’s long-standing lack of permanent leadership, the filing is the culmination of an effort that began in 2019 to overhaul all of the agency’s internal regulations. In connection with this, a number of other minor changes to the agency’s internal operations have also been made, including a provision that the examples listed in the agency’s regulations are “illustrative” examples rather than binding interpretations of policy, a clarification of when an MSPB decision becomes final, and a simplification of the way agency staff can process petitions for review of adverse staff actions.

Although the rules go into effect October 7, MSPB officials still encourage the public to comment during a 60-day comment period.

“Although these amendments are being issued immediately as interim final rules, the Board continues to request that all interested parties or other interested persons submit their views on the amendments,” the agency wrote. “The Board also requests additional comments on any other aspects of its regulations that interested parties or other interested persons believe require change. The Board will carefully consider all comments and respond to all comments as appropriate.