President Biden on July 3 announced his intent to nominate Henry Kerner as a Republican member of the Merit Systems Protection Board (MSPB), whose addition would bring the board’s roster to its full complement of three members.
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. All board members are nominated by the President and confirmed by the Senate.
If his nomination is confirmed by the Senate, Kerner will fill the seat previously held by Tristan Leavitt, whose term expired on Feb. 28, 2023. Kerner would serve seven-year staggered terms alongside Cathy A. Harris, the board’s chair, and Raymond A. Limon, MSPB vice chair.
Kerner has served as special counsel of the U.S. Office of Special Counsel (OSC) since October 2017, where he implemented new processes and procedures to dramatically increase OSC’s responsiveness to whistleblower complaints and focus on customer service. During his tenure at OSC Kerner also oversaw the restructuring of the agency’s programmatic units to streamline the handling of prohibited personnel practice investigations.
Kerner began his legal career working as a career prosecutor, primarily in Compton, Calif., for 18 years. In 2011, he joined the staff of the House Committee on Oversight and Government Reform, serving under Chairman Darrell Issa, R-Calif., and later, Chairman Jason Chaffetz, R-Utah.
Kerner also served as Staff Director of the Senate Permanent Subcommittee on Investigations, under former Ranking Member Sen. John McCain, R-Ariz.
Following Leavitt’s departure in February, the board only has two members – still enough to constitute a quorum and issue decisions. From 2017 to March 2022, the board did not have enough members to constitute a quorum.
The board – including Kerner, if confirmed by the Senate – will continue to act on the massive backlog of cases that accumulated due to the five-year lack of quorum. Since 2022, the MSPB issued decisions in more than 1,100 cases out of the 3,800 cases currently pending.
