MSPB wants to streamline processes and avoid the consequences of future board vacancies

The Merit Systems Protection Board (MSPB) is implementing regulatory changes to prevent workflow congestion that could result from potential future managerial vacancies.

After five years without a single politically appointed member of the MSPB, which led to an unprecedented backlog of about 3,600 pending federal employee appeals, the MSPB released updated operating protocols last week to clarify how the agency will operate in the event of a future quorum failure.

The interim final rule, which was published in the Federal Register on Sept. 9, will allow the agency to take certain arbitration steps to continue processing an employee’s appeal even in the absence of a quorum. The MSPB said the goal of the update is to create a more efficient and expedited processing of appeals at both the regional and headquarters levels, while also addressing “potential shortcomings” of the previous rule.

“From 2017 to 2022, 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 in the regulations, which will officially take effect Oct. 7. “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.”

The MSPB clarified in the new rule that if there are two or more vacancies on a three-member board, an individual MSPB member or other board employee will continue to be permitted to delegate specific official duties to a designated administrative judge.

But even with the new rules, there are still limits to what an agency can accomplish without at least two board members. Specifically, the new MSPB rules still won’t allow a single board member or staff member to actually make a final decision on a case without a quorum. Instead, a single member will only be able to reassign work done before the decision to an authorized official.

However, allowing a limited amount of work to be performed even when there are board vacancies will facilitate the final decision-making process once quorum is restored, the MSPB explained in the regulations.

While the section of the interim final rule that may be most significant addresses what the agency can still accomplish without a quorum, the rule is the culmination of a broader overhaul of the MSPB’s internal rules that began in 2019 “to further streamline its adjudication and operations,” the agency wrote.

Another change resulting from the interim final rule, for example, clarified that the examples in the MSPB lists are not “binding interpretations” but rather merely illustrate some possible applications. Another change clarified that MSPB administrative judges should hold a hearing only if the complainant specifically requests one.

Although the interim final rule will become official in a few weeks, the MSPB is still seeking stakeholder feedback for the next 60 days. The board said it will make changes to the new rule as needed based on the feedback it receives.

The MSPB is an agency responsible for hearing personnel appeals and its purpose is to protect federal employees from prohibited personnel practices, such as whistleblower retaliation.

In 2022, the Senate confirmed two board members, Raymond Limon and Tristan Leavitt, allowing the agency to begin issuing decisions again after a five-year hiatus. Just months later, MSPB Chair Cathy Harris was confirmed to her position in May 2022. And after Leavitt left the agency, President Joe Biden nominated, and the Senate subsequently confirmed, Henry Kerner to the board in May 2024.

The confirmed board has dramatically reduced the appeals backlog. As of April 2024, the MSPB has issued decisions on about 3,000 pending appeals cases. The agency said it expects to completely clear its backlog in fiscal year 2025.

“Some of these cases are difficult and challenging, and they deserve extra time to figure them out. But we’re working very hard. And what we’re doing is we’re doing the oldest cases and the newest cases at the same time,” Harris said. Federal drive in April. “We’re getting closer to the middle. You’ll see us continue to do that. But our pace is, I think, pretty fierce.”