Senate Committee Advances MSPB Nominees as Board Remains Memberless

On October 6, the U.S. Senate Committee on Homeland Security & Governmental Affairs voted to advance the three nominees for the Merit Systems Protection Board (MSPB). The Board, which oversees federal employee whistleblower retaliation cases, has lacked a quorum since January 2017 and has been without a single member since February 2019.

The lack of a MSPB quorum has been highly detrimental for federal whistleblowers. Without a quorum, the Board has not been able to issue final rulings in any cases. Thus, no federal whistleblower has been able to obtain any relief from retaliation for over four years.

In September, Kohn, Kohn & Colapinto founding partner Stephen M. Kohn wrote an article calling for a quick confirmation process of the MSPB nominees. “Action on President Biden’s nominations is a matter of urgency,” Kohn wrote. “The backlog facing the Board is immense. In response to a Freedom of Information Act request the MSPB confirmed that, as of January 2021, there were 3118 cases waiting for the three Board members to be confirmed by the Senate in order to simply have the authority to issue a final order in these cases.”

Members of the MSPB are appointed by the President and must be confirmed by the Senate. President Biden’s nominees are Cathy Harris, currently co-manager of the firm Kator, Parks, Weiser & Harris, Raymond Limon, the current Deputy Assistant Secretary for Human Capital and Diversity and Chief Human Capital Officer at the Department of the Interior, and Tristan Leavitt, the current general counsel of the MSPB. Harris is nominated to be the Chair of the MSPB, and Limon is nominated to be the Vice Chair.

Harris’ nomination was the most contested: her nomination advanced by a 7-6 vote along party lines. Both Leavitt and Limon’s nominations advanced with much wider margins and bipartisan support.

The next step in the confirmation process is a vote by the full Senate. Whistleblower advocates continue to call for a quick confirmation.