The partial government shutdown has ceased nearly all operations at the Merit Systems Protection Board.
Processing of employee and agency appeals have been suspended until the government reopens. Hearings, status conferences or other meetings scheduled with MSPB administrative judges for a date while the agency is closed are also postponed. MSPB will eventually automatically extend any processing and filing deadlines by the number of calendar days that the agency is shut down, according to a message on its website. The agency’s online appeal system is down.
But there is one person working.
Only board members are considered “excepted” employees during a government shutdown, and since acting MSPB Chairman Mark Robbins is the only one, he’s working at the MSPB headquarters in Washington alone.
“It is literally just me,” he said during an interview with the Federal Drive with Tom Temin. “I’m going in every day. I walk the floors mostly to make sure there isn’t anything like a pipe leaking that needs be addressed immediately.”
Robbins is still reviewing cases through the partial shutdown, though the supply may run out at some point depending on how long the lapse in appropriations lasts. Attorneys in MSPB’s Office of Appeals Counsel first accept a petition for review, read the case and offer up advice. Robbins will read the case himself and vote.
“I have a stash of cases that will keep me busy for probably another few days before I finish what was in the pipeline before the staff was furloughed back at the end of December,” he said.
When the cases run out, Robbins said he has performance reviews and other administrative tasks that could keep him busy.
The cases that Robbins is reviewing during the partial shutdown, of course, can’t go anywhere but in a stack on his desk. MSPB has lacked a quorum for the past two years, and each petition for review needs at least one other member to review and vote on it.
The Senate needed to confirm the president’s nominees by the end of 2018, but none of the nominees cleared the Homeland Security and Governmental Affairs Committee. Now, the president must nominate the same people again or consider new ones. To make matters more complicated, Robbins’ term expires in March.
That leaves the Trump administration and Congress less than 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. The prospects for meeting those deadlines are dim, Robbins and former MSPB officials have said, and the board faces a likely possibility that it will have no members by March.
MSPB would largely continue to operate in the same way that it has been for the past two years without a quorum, but the prospect of a board with no members creates a more visible void for the employees who have been waiting months for a decision on their petitions.
At last check in September, MSPB had 1,520 pending petitions awaiting action from the full board, according to the tracker on the agency’s website. That tracker is currently down due to the government shutdown.
Robbins to take on OPM general counsel role
Meanwhile, Robbins is about to take on an additional job.
President Donald Trump on Dec. 20 designated Robbins to concurrently serve as both a MSPB member and as general counsel at the Office of Personnel Management — at least through March.
“I’m very excited by this,” Robbins said. “It’s an honor to be to do two full-time jobs at the same time, even if it’s just for a short period of time.”
The Justice Department’s Office of Legal Counsel and the White House Counsel’s Office vetted the President’s directive to have Robbins concurrently serve in these two positions.
A member-less MSPB more likely as Senate committee fails to clear pending nominees
“There are some matters at both agencies requiring my recusal due to potential conflict,” Robbins wrote in a Dec. 21 email to employees. “But those situations are minimal given our lack of quorum. In fact, this directive would not be possible but for our lack of quorum.”
Robbins served as OPM general counsel during the George W. Bush administration in 2001 and 2006. He said he still knows a good number of the staff at the OPM office.
“Physically, I’ll be bouncing back and forth between MSPB and OPM,” Robbins said in the email. “But it is a short hop and I will remain available for board business at all times. I am thankful for the leadership team here. Everyone has demonstrated the admirable ability to ‘keep calm and carry on’ under some pretty unique circumstances the past two years. The president’s directive merely makes our circumstances even more unique.”
But Robbins hasn’t started his additional job yet. While OPM’s general counsel is an “excepted” employee during a government shutdown, the staff at OPM who are supposed to handle his file as a “new” employee at the agency are not.
“My paperwork is on someone’s desk who is furloughed,” Robbins said.