President Biden this week sent to the Senate two renominations that would fill out the three-member roster of the Merit Systems Protection Board (MSPB) and give the board a permanent chair to help it continue efforts to reduce a long-standing backlog of thousands of cases.
The MSPB is an independent, quasi-judicial agency in the executive branch that serves as the guardian of Federal merit systems to protect against partisan political and other prohibited personnel practices.
The board currently has only two of its three allotted members, which is enough to constitute a quorum and issue decisions. From 2017 to March 2022, however, the board did not have enough members to constitute a quorum, and during that time accumulated a backlog of several thousand cases.
The White House said this week it was renominating Cathy Ann Harris – who is currently an MSPB member and the board’s acting chairman – as permanent chairman. She was confirmed by the Senate on a 48-46 vote in 2022 to become a member of MSPB, but a separate nomination to appoint her chairman was not acted upon.
Also renominated this week as an MSPB member was Henry Kerner for a term expiring in 2030. Kerner was nominated for that position last year, and the nomination was approved in December by the Senate Homeland Security and Governmental Affairs Committee. The full Senate, however, took no action on the nomination by the end of the year.
According to the Congress.gov website, the Kerner nomination was returned to the White House under Senate Rule XXXI, clause 6, which says that nominations that have been neither confirmed nor rejected by the Senate at the time the Senate adjourns or for more than 30 days are returned to the president. The Senate routinely holds over some nominations between sessions of Congress or over a long recess but has to agree to do so by unanimous consent.
