Recent developments on the MSPB raise a somewhat philosophical question: does walking on a treadmill count as movement?

If the answer is yes, then there has been movement on the MSPB. On February 3, the Senate Homeland Security and Governmental Affairs Committee (HSGAC) voted to approve Cathy Harris to chair the MSPB. This vote was notable, in the sense that HSGAC had already voted to approve Cathy Harris on October 6, 2021, along with the other two nominees to the board, Raymond Leamon and Tristan Leavitt. For those keeping score at home, October 6, 2021, was more than five months ago. The nominees have all been advanced to the Senate floor but have thus far been denied a full confirmation vote. Each nominee is viewed as unacceptable to at least some Senators, and the Senate has thus far refused to confirm any nominees without confirming all of them.

January 11, 2022, marked the five-year anniversary without a quorum at MSPB. As the MSPB cannot finalize cases without a quorum, the backlog of unresolved cases has piled up over the last five years, now possibly exceeding 3,700 cases. An unknown number of these cases, when finally heard, will be found in favor of employees who filed grievances for improper removal. This is incredibly concerning for two reasons.

The first reason is that justice delayed is justice denied. Some people who filed cases have died, as have critical witnesses. 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.

The longer the MSPB Board sits vacant, the more the prospect of justice recedes. FMA will continue to urge Senate action to confirm the nominees and restore a working MSPB.