Dive Brief:

• ​The Merit Systems Protection Board lacks a quorum and therefore is "unable to act" on certain federal employees’ whistleblower retaliation claims, a pair of lawmakers told President Joe Biden in an April 5 letter urging him to nominate more board members.
• The board has lacked a quorum since January 2017 and has had no members since March 2019, according to Rep. Gerald Connolly, D-Va., and Rep. Jody Hice, R-Ga. "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 pair wrote. The vacancies reportedly have led to a backlog of more than 3,000 petitions from federal employees.
• Notably, the board’s administrative judges have continued some of this work, but litigation pending in the federal court system could soon put a stop to that, Connolly and Hice said. "[T]he courts deciding these three cases may rule 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." This means that if left without a quorum, MSPB is at risk of having to cease operations, the lawmakers said, urging Biden to prioritize such nominations.

Dive Insight:

MSPB is tasked with protecting federal employees from improper employment actions, according to a 2019 Congressional Research Service report. The Board works to ensure, for example, that federal agencies do not take arbitrary actions against employees, exhibit favoritism or retaliate against whistleblowers, the report said.

Other groups have issued warnings similar to the one from Connolly and Hice, including MSPB itself. "The most significant issue affecting MSPB again this year is the lack of quorum that began three years ago this month," the agency said in a January 2021 press release announcing its annual report; "Once again, the FY 2020 Annual Report does not contain case processing statistics for headquarters cases, summaries of significant Board decisions, or of official merit systems study reports because none were issued in FY 2020."

Former President Donald Trump nominated individuals to the board but the Senate did not confirm them. The issue is on the Biden White House’s radar, according to Government Executive reporting.