Justice Delayed is Justice Denied
On Tuesday, March 1, 2022, the Senate finally acted to confirm two of President Biden’s nominees for the Merit Systems Protection Board (MSPB), restoring a quorum to an MSPB that has languished without one for more than five years. Craig Carter, Federal Managers Association’s (FMA) National President, had the following to say on this key development.
"FMA welcomes the Senate’s unanimous vote of support for Tristan Leavitt and Raymond Limon to the Merit Systems Protection Board. It has been well documented that MSPB has not had a quorum for more than five years and a huge backlog of more than 3,500 unresolved cases are the result. This is justice delayed, sometimes for many years. FMA has advocated for this overdue action for several years and we are relieved to see this progress.
“MSPB’s mission is to “protect the merit system principles and promote an effective federal workforce free of prohibited personnel practices,” but has not been fully functional without a quorum to issue final rulings. Tristan Leavitt and Raymond Limon both have the qualifications and respect necessary to serve honorably on the MSPB board, and FMA endorsed their nominations.
“FMA applauds the Senate for confirming Leavitt and Limon to the board. We are confident they will provide due process for thousands of feds and we wish them success as they tackle the backlog that awaits them at MSPB.”
Restoring a quorum to the MSPB has been a major FMA priority during this regrettable period. Over the past five years, FMA has reached out to every Senator to advocate for restoring the MSPB. FMA appreciates our partners at the Government Managers Coalition and the Federal-Postal Coalition, who have also worked hard for this outcome and with whom we have sent numerous joint letters.
It is important to remember the damage that has been done by this denial of due process for feds. An unknown number of the thousands of cases, when finally heard, will be found in favor of employees who filed grievances for improper removal. This is concerning for two reasons.
The first reason is that justice delayed is justice denied. There will be people who will have spent at least five years out of the federal government when their case is finally heard. Their livelihoods will have been damaged, home lives disrupted. Forcing them to wait for judgement is unfair to the feds who filed grievances.
The other side of this coin is the impact on the agencies. Agencies may be required to pay out five years or more of back pay for cases found in favor of the filer, depending on how long the case has been sitting in purgatory. For agencies with budgets already reeling from the impacts of Covid-19 and mitigation requirements, and saddled with the expense of constant continuing resolution’s, this will hurt. The money must come from somewhere, and it will have an impact.
While we are pleased with this outcome, work remains to be done. The two members who were confirmed to the MSPB give it a quorum, but not a flawless one. With only two members, all decisions must be unanimous. Considering that the backlog of cases has grown to more than 3,500 unresolved cases, there may be cases in which the MSPB deadlocks without a third member. Additionally, when a single absence for any reason would be sufficient to deny the MSPB a quorum, the current situation is fragile. FMA urges the Senate to confirm a third board member to bring the MSPB back to its full stature so that it is again fully functional. Federal employees deserve nothing less.
If you are not already a member of FMA, please consider becoming a member.
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.