Feds Deserve Due Process
On paper, the Merit Systems Protection Board (MSPB) is an independent, quasi-judicial Federal agency that exists to hear appeals from federal employees who are subjected to adverse actions by their agency; for example, a whistleblower who was subjected to a suspension or demotion as a result of their actions would appeal their case to the MSPB. Unfortunately, “on paper” is the main place that the MSPB has existed for several years now. The last time the MSPB had a quorum and was able to finalize decisions was in January 2017, more than four years ago. The term of the final member on the board expired in 2019, leaving the MSPB completely without members for more than two years.
Why is this a problem? Mainly because a quorum on the MSPB was not only the best way to resolve these appeals; it was the only way. While administrative judges can issue initial decisions, until the board has members restored to it and can form a quorum, not a single case can be finalized. And yet, every month, more and more cases are added to the backlog. The backlog of unheard cases had grown to over 3000 by January of this year; over the past five months, it has only continued to grow.
There is no good reason for this situation to exist. The Trump Administration eventually nominated three members to the board. However, none were ever given a confirmation vote in the Senate, and their nominations eventually expired without confirmation. In April of this year, President Biden nominated employment and civil rights lawyer Cathy Harris to the MSPB. There has, unfortunately, been no movement on Harris’s confirmation, or on nominations of other board members since the initial nomination.
Restoring the MSPB to operation and clearing the snowballing backlog is a major FMA priority. It is one of our Issue Briefs in 2021. There is a large pool of talented legal minds on both sides of the aisle who would make excellent nominees for this key board. FMA has worked alongside other members of the Government Managers Coalition to address this, including sending a letter in January to the Biden Administration recommending four potential nominees; Cathy Harris, Kator, Parks, Weiser & Harris, PLLC; Julia A. Clark, former labor attorney & Democratic MSPB nominee by President Trump; Krista Boyd, General Counsel, House Committee on Oversight & Reform; and Tristan Leavitt, MSPB General Counsel & Acting Chief Executive and Administrative Officer.
FMA is gratified Ms. Harris was chosen as the first nominee and will work to support her confirmation as soon as is reasonably possible. We will continue to work with the Administration, and with key partners in Congress on both sides of the aisle to see that the remaining two members of the board are nominated and confirmed in as timely a fashion as possible. Due process and a fully functioning MSPB is vital for agencies and its employees.
The views reflected in this column are those of FMA and do not necessarily represent the views of FEDmanager. To learn more about the Federal Managers Association (FMA), visit their website: FedManagers.org.