A member-less MSPB more likely as Senate committee fails to clear pending nominees

The Senate Homeland Security and Governmental Affairs Committee failed to clear any of the president's nominees to fill the Merit Systems Protection Board (MSPB...

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Federal employees and agencies who have been anxiously waiting for an active Merit Systems Protection Board will be waiting longer — perhaps much longer — for a decision on their pending petitions for review.

The Senate Homeland Security and Governmental Affairs Committee on Wednesday could not clear any of the president’s nominees to fill the MSPB and restore a long-awaited quorum to the board.

Lack of action on the president’s current nominees mean the prospects of an MSPB with no members may be a realistic possibility. It would be the first time in the agency’s 40-year history that the board would have no members.

The committee voted on Andrew Maunz‘s nomination first and never got to the two other nominees, Dennis Kirk and Julia Clark. Committee Chairman Ron Johnson (R-Wis.) said he wouldn’t call a confirmation vote for the others unless members agreed to clear Maunz.

Maunz, an attorney for the Social Security Administration’s Office of General Counsel, clearly received some opposition. Several federal unions, including the American Federation of Government Employees and National Federation of Federal Employees, wrote to committee leadership back in July to express their opposition for both Maunz and Kirk.

“There’s been a lot of push back and forth on this nominee,” Sen. James Lankford (R-Okla.) said of Maunz. “What’s been interesting is both in the hearing itself and the questions that he handled there and in the follow-up letters that have been plentiful … there has been a lot of good information that has come out. This is a nominee that we have done the due-diligence on.”

The committee voted 7-7 for Maunz’s nomination. Sen. Rand Paul (R-Ky.) wasn’t present Wednesday morning but voted “no” by proxy. His opposition didn’t count, but the committee still lacked enough votes to move Maunz’s nomination forward.

Johnson’s office didn’t immediately return a request for comment about the path forward for MSPB.

Wednesday’s outcome doesn’t bode well for the board’s future prospects.

The Senate needs to confirm the nominees by the end of 2018; otherwise, the president next year must nominate the same people again or consider new ones. To make matters more complicated, the term for Mark Robbins, the lone board member and acting MSPB chairman, expires in March.

That leaves the Trump administration and Congress three months to appoint new nominees, hold hearings and have a full Senate vote before Robbins is statutorily required to leave his position as acting MSPB chairman.

With a timeline that tight, federal employment attorneys and others in the community have said the prospects for a board with no members, much less a quorum, look more likely. In the meantime, Robbins said he’ll continue in his current role to make preparations for the agency’s future — whatever that future looks like.

“I intend to keep this agency operating and to make sure it continues to operate even without confirmed members until I’m definitively told I can’t,” he said.

MSPB has been without a quorum since January 2017, the longest in the agency’s history. Federal employees with pending petitions for review have been waiting since then for a decision, even though Robbins has been working the cases on his own. But without at least one other board member, those decisions have been in limbo, and employees have been waiting.

With today’s outcome, employees with pending petitions for review will likely wait for much longer, said Jim Eisenmann, a former MSPB executive director and general counsel. Eisenmann recently joined the Kalijarvi, Chuzi, Newman and Fitch law firm as a federal employment attorney.

“It’s going to be many, many more months,” he said. “Whenever there are new people [at the board], it’s also going to take months for them to get up to speed.”

Though a board with no members many not, on the surface, function much differently than the board does today without a quorum, the federal employment law community is questioning whether the rest of the agency would have the authority to operate.

The board itself delegates authority to the agency’s administrative judges, who rule on federal employee and agency appeals. If the board itself is vacant, do administrative judges retain their authority to decide cases? The answer to that question is unclear, again, because MSPB has never been in this situation before.

The current uncertainty is also changing the way federal employment attorneys like Eisenmann deal with their clients.

“I’m not recommending employees to file petitions for review,” he said. “If I’m recommending an appeal, I’m recommending they go to the federal circuit.”

Departing Senate Democrats say goodbye

The Senate Homeland Security and Governmental Affairs Committee also took time to acknowledge two of its departing members: Sen. Claire McCaskill (D-Mo.), the ranking member, and Sen. Heidi Heitkamp (D-N.D.).

Both Democrats will leave the Senate in a few weeks, leaving two minority leadership positions on the committee open.

In her parting words, McCaskill encouraged Sen. Ron Johnson (R-Wis.), the committee’s chairman, to reconsider the use of subpoenas in the next Congress.

Heitkamp served as ranking member on the regulatory affairs and federal management subcommittee.

“If I have one regret it’s that we weren’t able to convince more colleagues to take this work seriously… the demise of the federal workforce,” Heitkamp said. “Millennials don’t want to work for us, you guys. There is a reason for that. We have to examine that. We are not getting the best and brightest, and we’ve created a hostile workforce for many employees who want to participate in government service.”

The committee should pay more attention to the “nuts and bolts” of government, including the federal workforce, regulatory reform and Government Accountability Office and inspector general reports, Heitkamp said.

“There is a common-sense sweet spot that we can find,” she said.

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