With no quick fix in sight, MSPB careening toward ‘unprecedented’ scenario Thursday

The White House and Congress have less than 24 hours now to staff the Merit Systems Protection Board before the term of the agency’s lone member expires at midnight on Friday.

The prospects for success don’t look promising. The agency will almost surely spend a period of time with no board members at all, leaving federal employees — and agencies — with no avenue to appeal and pursue pending petitions for review before the board.

The holdover term for Mark Robbins, the lone MSPB board member who has spent the last two years reading and deciding cases and then waiting for the Senate to restore a quorum to the board, expires Friday.

While two of the president’s nominees have cleared the Senate Homeland Security and Governmental Affairs Committee, its chairman, Ron Johnson (R-Wis.), has said he won’t move them to the Senate floor for a vote unless the White House nominates a third board member.

President Donald Trump had originally nominated three members to fill the board last year, but the third nominee, Andrew Maunz, withdrew his name earlier this month after the committee failed to clear his name amid concerns from federal employee unions.

Several good government groups are making a last-ditch appeal to the White House to nominate a third member to the board. As of Wednesday afternoon, the Government Accountability Project and other organizations were finalizing a letter to the President.

The situation has been frustrating for good government groups who have been working with both House and Senate oversight committees in recent months to avoid this situation.

But even if a name did materialize from the White House Thursday, the Senate will take weeks — if not months — to vet, consider and confirm a  third board member.

Recognizing a nearly impossible timeline, Democratic leadership on the House Oversight and Reform Committee introduced a bill that would temporarily extend Robbins’ term for another year. The MSPB Temporary Term Extension Act wouldn’t restore a quorum at the board, but it would keep up appearances of a functioning agency.

The bill quickly passed the House Tuesday, but oversight members said it wasn’t clear the Senate would vote on the legislation.

Meanwhile, the House Oversight and Reform Committee on Thursday will hear from Robbins himself on his expected last day at the MSPB.

Robbins, along with members of the Heritage Foundation, Georgetown University, Congressional Research Service and GAP, are expected to testify about the impact of the board’s lack of quorum on the civil service.

MSPB’s unprecedented situation

The situation, as most witnesses will testify Thursday morning, is unprecedented.

The board has never been without a quorum for this long. MSPB has only lacked a quorum of two members only one other time in its 40-year history, for a period of four-and-a-half-weeks in 2003, according to Robbins’ written testimony.

But since January 2017, the board hasn’t been able to make final decisions on adverse action appeals, otherwise known as petitions for review. More than 1,900 are pending before the board today, Robbins said.

“For some, this is justice denied,” John York, a policy analyst with the Heritage Foundation and one of the committee’s witnesses, said of the pending petitions for review, in his written testimony. “For most, this is punishment delayed. Though the procedural pitfalls are many and the standard of proof is often high, most serious adverse actions are affirmed by the MSPB.”

York pointed to 2016 statistics that show the board reversed 4 percent of initial decisions from administrative judges and remanded 89 percent.

“If history holds, many employees who have won an appeal before one of the MSPB’s administrative judges but will eventually lose before the board, are currently receiving ‘interim relief’ — i.e., a salary and other benefits — while they either continue working or languish on administrative leave,” York wrote. “All the while, their agency cannot advertise an opening and begin the long process of hiring a new employee.”

For Tom Devine, the legal director at the Government Accountability Project, MSPB’s lack of quorum is especially hurtful to whistleblowers.

Though federal employees who have submitted a petition for review after the board lost its quorum in January 2017 face years of potential delays, the situation is worse for those whose cases were delayed before that time, Devine said in his written testimony.

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In addition, MSPB hasn’t been able to issue interpretative guidance on employee rights, which to Devine means that administrative judges have been less likely in recent years to side with whistleblowers on a series of complicated legal questions.

MSPB’s current uncertainty comes as some in both Congress and the Justice Department have openly pondered whether the board could even continue to function if it loses all members.

Valerie Brannon, a legislative attorney for the Congressional Research Service, will offer up a range of legal opinions on whether an MSPB with no board members could delegate authority to administrative judges and others to continue the agency’s functions.

The agency does have a plan for how it might continue to operate should the board lose all members this week. The MSPB’s general counsel will become the agency’s acting administrative and executive officer, Robbins said.

The general counsel won’t be able to vote on pending petitions, but he will be able to “keep the agency running,” Robbins added.

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