U.S. Merit Systems Protection Board:

Frequently Asked Questions about the Lack of Quorum Period and 

Restoration of the Full Board

UPDATED: July 12, 2023

1. How are the 3 Board members appointed?

All Board members must be nominated by the President and confirmed by the 

Senate. Designation as Chairman is a separate nomination by the President which 

requires confirmation by the Senate. The President can designate a Vice Chairman

with no additional Senate action required. In the absence of a confirmed 

Chairman, the Vice Chairman serves as the Acting Chairman. The Board members 

serve 7-year staggered terms and the terms continue to run and restart even if there 

is no incumbent. See 5 U.S.C. §§ 1201 and 1202; 5 C.F.R. § 1200.2. 

2. What was the lack of quorum period and what is the current status of the 

Board? 

Between January 7, 2017, and March 3, 2022, the Board did not have a quorum of 

members and therefore could not vote on any petitions for review.

The quorum was restored on March 4, 2022, when Member Raymond Limon and 

Member Tristan Leavitt, who were confirmed by the Senate on March 1, 2022, 

were sworn into their duties as members of the Board. Acting Chairman Cathy 

Harris, who was confirmed by the Senate on May 25, 2022, was sworn into her 

duties on June 1, 2022. 1

 

Member Leavitt departed the Board following the expiration of his term on

February 28, 2023. 2

 Effective March 1, 2023, the Board has two members: Acting 

Chairman Harris and Member Limon. Two members constitute a quorum and the 

Board has continued to issue decisions. 

On July 3, 2023, President Biden announced his intent to nominate Henry J. Kerner 

for Member of the Merit Systems Protection Board. Mr. Kerner’s nomination was 

sent to the Senate on July 11, 2023. 

1 Ms. Harris’s separate nomination as Chairman remains pending in the Senate. 

On June 6, 2022, the President designated Ms. Harris as Vice Chairman. As such, 

and until the Senate acts on her nomination as Chairman, Ms. Harris will serve as 

Acting Chairman.

2 The terms of Member Limon and Acting Chairman Harris will expire on 

February 28, 2025, and February 28, 2028, respectively. 
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3. What was the impact of a lack of quorum and Board members on MSPB 

operations? 

As to the adjudicatory authorities of the Board, the Board was unable to issue final 

decisions on petitions for review and other cases requiring Board vote between 

January 7, 2017, and March 3, 2022. See generally 5 U.S.C. § 1204(a); 5 C.F.R. 

§ 1200.3. General information about the number of petitions for review pending 

as of time the quorum was restored is available in the e-FOIA Reading Room of 

MSPB’s website. 

As to the executive leadership of the Board, between March 1, 2019, and March 3, 

2022, Tristan Leavitt (who served as General Counsel before his confirmation as 

Member) fulfilled the responsibilities for the executive and administrative 

functions vested in the Chairman in accordance with MSPB’s continuity of 

operations plan. Effective March 4, 2022, through June 5, 2022, those 

responsibilities resided with then-Vice Chairman Raymond Limon who served as 

Acting Chairman. On June 6, 2022, President Biden designated Cathy Harris as 

Vice Chairman of the Board, and Ms. Harris is currently serving as Acting 

Chairman with regard to the executive and administrative functions of MSPB. 

4. How is the Board handling the inventory of cases that developed during 

the lack of quorum? 

Since the quorum of members was restored effective March 4, 2022, the Board has 

been issuing final decisions on petitions for review and other cases pending before 

it. The new Board inherited a case inventory at headquarters of approximately 

3,800 cases. The Board began issuing decisions quickly after the quorum was 

restored and focused initially on issuing a range of decisions in cases that, in its 

discretion, the Board deemed most critical, including precedential decisions or 

decisions that otherwise could affect many pending cases; decisions dismissing 

cases as settled; and many of the oldest cases then pending. The Board has issued 

decisions in more than 1,750 cases since the quorum was restored. Information 

about the Board’s progress in deciding cases at the headquarters level and reducing 

the inherited inventory is available in the Board’s e-FOIA Reading Room. 

In Fiscal Year 2023 (October 1, 2022, to September 30, 2023), the Board has 

committed to issuing decisions in a majority of its 1,000 oldest cases, i.e., cases 

that were filed with the Board on or before December 21, 2017. The Board also 

continues to exercise its discretion to decide cases in a way that balances 

advancement of legal doctrines, efficiency in case processing, and other 

considerations inherent to adjudicatory decision making. 

Information about the Board’s progress in Fiscal Year 2022 is available in the 

2022 Annual Report. 
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5. Could administrative judges (AJs) issue initial decisions when there was a 

lack of Board quorum or Board members? 

Yes, AJs continued to issue initial decisions during the lack of quorum, pursuant 

to longstanding delegated authority. If neither party files a petition for review to 

the MSPB, the AJ’s decision becomes the final decision of the Board and may be 

appealed to an appropriate court or tribunal. See 5 U.S.C. § 7703. If either party 

filed a petition for review to the MSPB, a Board decision could not be issued until 

a quorum of at least two Board members was restored. 

6. Could the Board issue decisions on petitions for review without a quorum

or Board members?

No. Petitions for review received before January 7, 2017, and for which the voting 

process was not completed before the Board lost a quorum, could not be issued 

until a quorum was restored. Petitions for review received after January 7, 2017, 

have been acknowledged by the Office of the Clerk of the Board and processed 

according to current Board procedures. The Board could not issue decisions on 

these petitions until a quorum was restored. 

 

7. Can the Board issue decisions on requests to withdraw petitions 

for review? 

Yes. Pursuant to the June 28, 2022 Policy Regarding Clerk’s Authority to Grant 

Requests to Withdraw Petitions for Review (and its predecessor policy dated 

May 11, 2018), and the Board’s 2011 Manual on Organization Functions and 

Delegations of Authority, the Clerk of the Board may exercise its delegated 

adjudicatory authority to “grant a withdrawal of a petition for review when requested 

by a petitioner.” 

8. How were appellants advised of their administrative appellate review or 

judicial options during the period in which there were no sitting Board 

members? 

A party’s administrative and/or judicial appeal rights continued to be listed at the 

end of every initial decision. If the appellant, the agency, or both filed a petition 

for review, it was acknowledged and processed by the Board, as explained above. 

The petition for review filing deadlines were not tolled (i.e., stopped) during any 

lack of quorum. This means that parties to a case who wished to file a petition for 

review must have done so within 35 days of issuance of the initial decision, as 

required by the Board’s adjudicatory regulations at 5 C.F.R. § 1201.114. 

However, the Board could not issue a decision until a quorum was restored by the 

nomination and confirmation of at least two Board members (which occurred on 

March 4, 2022). 
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If neither party to a case filed a petition for review, the AJ’s initial decision 

became the final decision of the Board. An appellant could choose to exercise his 

or her review rights, which may include an appeal to the U.S. Court of Appeals for 

the Federal Circuit, U.S. District Court, an appropriate circuit court of appeal, or 

the Equal Employment Opportunity Commission, depending on the type of appeal 

and claims raised. See 5 U.S.C. § 7703. 

The parties were informed of the current Board lack of quorum and members in 

initial decisions, and in acknowledgment notices issued by the Office of the Clerk 

of the Board, if either or both parties filed a petition for review with the Board. 

9. Is there a point of contact for other questions?

For further information, please contact the Office of the Clerk of the Board via 

email to mspb@mspb.gov or via phone at 202-653-7200. Additional information 

about the Board’s organizational structure can be found on the website at 

www.mspb.gov, in its agency plans and annual reports, and in its current 

Organization Functions and Delegations of Authority.