New thoughts about the Merit Systems Protection Board. It’s a tiny agency topped by a three-member board, the smallest number possible to have no-tie votes. Its work seems arcane in the grand scheme of the republic. The pituitary gland is also a tiny little thing, but its ordinary operation has a lot to do with general health of the body.
Quorum-less for five years and totally memberless for two, the MSPB was revived a few weeks ago when the Senate confirmed two of the three nominees to make a quorum, and at this writing is likely to vote to make Cathy Harris the third member and chairwoman.
But already the two-member quorum has been getting down to work.
To wit: One decision from March 28 restored a Transportation Security Administration employee, Mr. Q, to his job. A whistleblower, he was terminated in November — of 2012. The board’s decision, which affirmed the decision of an MSPB administrative judge, includes back pay. The man will get nearly a decade of salary plus interest!
In another whistleblower case, it appears the Army came down like a ton of bricks on a Dr. D., who had gone to the inspector general about sloppy inspections of the Army’s infectious diseases lab at Ft. Detrick, Maryland, and its discouraging people from reporting goofups in handling, oh, you know, ebola or tularemia. The Office of Special Counsel referred the case to the MSPB, along with a litany of retaliatory actions against Dr. D. She has a desk in a records room with nothing to do. This has been going on for six years. The OSC found prohibited personnel practices up the wazoo, but it will take the MSPB to force the Army to take corrective actions. Now there’s an MSPB.
In case of Mr. R, who was fired in 2013 during what the Interior Department supervisors called his probationary period. The details are technical and complicated, having to do with timely notice and veterans’ job rights. But an administrative judge reversed the termination. The agency appealed, and now the MSPB quorum has upheld the judge’s findings, so the employee must be reinstated.
Board members Tristan Leavitt and Raymond Limon are working through a stack of 3,000 appeals. In these two cases they state their decisions are non-precedential. They don’t break new legal ground. More often than not, the board upholds the decisions of administrative judges, unless members find some defect of law or procedure.
You might say, well, two, three employees out of two million, good for them, but what’s the big deal? My take is that, while the cases can be highly legalistic and hard to sort out, they add up to a principle. Simply, that if the government purports to have rules and procedures for dealing with employees, it must follow them to their logical conclusion. Otherwise, in effect it doesn’t have them. These rules and regulations stem from statutes. If the rules don’t really mean anything, then neither does the law.