FMA Seeks to Restore Leadership and Resources at the Merit Systems Protection Board
The Senate has a lot of business to tend to when it returns from its State Work Period on September 9. Most notably, it will have barely three weeks before the end of the current fiscal year to pass appropriations to fund the federal government for Fiscal Year 2020 (FY20) and prevent another government shutdown. Among the other important priorities on the Senate’s plate is finally confirming nominees for the Merit Systems Protection Board (MSPB), the primary appeals board for federal employees.
The three-person MSPB has not had a governing quorum, necessary to issue final decisions, since January 2017. In fact, the board hasn’t had any members at all since March of this year. This clearly hampers MSPB, which also cannot issue studies or detailed analysis on the civil service. Administrative Judges may make initial decisions despite the absence of a quorum on the board’s central panel. It has accumulated an astounding backlog of cases in the last two and a half years. As of April 2, the MSPB had 2,045 petitions for review.
The backlog translates to a lot of lives and livelihoods on hold, and potential costs to the federal government in back pay and other compensation if cases are determined in an employee’s favor. This unprecedented situation has left all federal employees with limited protections.
FMA joined many organizations in bringing attention to the issues at MSPB long before it was left without any board members, including endorsing the MSPB Temporary Term Extension Act (H.R. 1235) which would have extended the term for Mark Robbins, the last Senate-confirmed board member. While the bill passed the House by voice vote, the Senate did not take it up.
The Senate Homeland Security and Governmental Affairs Committee approved two nominees to the board – Dennis Kirk and Julia Clark – in February, but the Chairman of the Committee, Ron Johnson (R-WI) prevented a full vote until President Trump named a third nominee. B. Chad Bungard, a former General Counsel at MSPB, was nominated at the end of April, and the committee advanced his nomination on June 19. FMA, along with colleagues within the Government Managers Coalition has voiced strong support for Mr. Bungard and the other nominees. Reports suggest the full Senate will consider all three nominees as a bundle. FMA urges Majority Leader McConnell and the Senate to vote as swiftly as possible to confirm their nominations and begin to restore MSPB.
Meanwhile, MSPB will be watching closely as Congress deliberates FY20 appropriations next month. The White House included $42.2 million in the FY20 budget request – a 10 percent cut from last year. However, MSPB is seeking a $4.5 million increase in a “bypass request” to Congress, calling it the “level necessary for critical functions.” In its request, MSPB cited the increasing backlog, the need for IT modernization, the increase in retirement cases, and a likely increase in cases related to the White House executive orders related to the federal workforce. The House-passed version of the Financial Services and General Government appropriations bill (H.R. 3351) includes $46.8 million for MSPB, the full amount the independent agency is asking for. FMA has endorsed H.R. 3351, which also includes a 3.1 percent across-the-board pay raise for federal employees.
MSPB has played a vital role in protecting federal managers and all civil servants for more than 40 years, and FMA will continue to advocate to ensure it has the resources it needs to operate effectively. The Federal Managers Association encourages the Senate to promptly vote on the three nominees and to fund the agency at its requested level.
Correction: An earlier version of this story published in the e-newsletter incorrectly noted the current number of cases requiring board action. The article published reflects the correct numbers.
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