Ranking Member Hice, Chairman Connolly Request Biden Prioritize MSPB Nominations

WASHINGTON—Rep. Jody B. Hice, Ranking Member of the Subcommittee on Government Operations, and Rep. Gerald E. Connolly, Chairman of the Subcommittee on Government Operations, sent a letter to President Joseph R. Biden requesting that he prioritize nominations to the Merit Systems Protection Board (MSPB).

“We write to urge you to nominate qualified board members to the Merit Systems Protection Board (MSPB), which is currently without any board members,” Connolly and Hice wrote.  “Without a quorum, the MSPB is unable to act on claims of whistleblower retaliation and is at risk of essentially having to cease its operations.”

Since January 7, 2017, the Board has lacked a quorum to perform its responsibilities and 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.  These vacancies have led to a backlog of more than 3,000 petitions from federal employees requesting review of their allegations.   

While the Board has been unable to adjudicate petitions for review, the MSPB’s roughly 60 administrative judges (AJs) have been able to continue their work issuing initial decisions on federal employee appeals to the MSPB.  But now, three cases pending in the federal court system — Coppola v. Department of Veterans Affairs, McIntosh v. Department of Defense, and Henderson v. Department of Health and Human Services— threaten to cease AJ operations entirely.

In the wake of the Supreme Court’s decision in Lucia v. Securities and Exchange Commission, the courts in these three cases may determine that AJs at the MSPB are not appropriately vested with the authorities needed to perform their duties. In the event of such rulings, the MSPB would need to take action to vest the AJs with the required authority, which requires the Board to assemble a quorum – something it cannot now 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,” Connolly and Hice concluded.  “To prevent this outcome, as Chairman and Ranking Member of the Subcommittee with jurisdiction over the MSPB, we respectfully request that you prioritize the nominations of new Board members.  Once your nominations are made, we trust that the Senate will work quickly to confirm the qualified candidates to the MSPB and restore the Board to full operations.”

Click here to read the letter.