Senate forces ‘first’ for MSPB as the agency loses all members

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The Merit Systems Protection Board is out of time and now officially out of members.

The Senate didn’t confirm either of the President’s two vetted nominees to the board Thursday, nor did it take up House-passed legislation that would have extended the holdover term for lone board member Mark Robbins to serve another year.

The White House hasn’t named a third nominee to fill the board, which Senate Homeland Security and Governmental Affairs Committee Chairman Ron Johnson (R-Wis.) said the President must do before he would send the two nominees the panel had confirmed to the floor for a confirmation vote.

In this Aug. 7, 2018, photo, Mark Robbins, the sole member of the Merit Systems Protection Board, walks through the supply closet, pointing to boxes full of cases, in his office in Washington. (AP Photo/Juliet Linderman)

Robbins’ last day at the MSPB was Thursday. Several hours before his term expired at midnight, he acknowledged that a board with no members was a virtual inevitability.

“It’s too late. The ship has sailed,” he told reporters Thursday morning after a brief hearing before the House Oversight and Reform Committee on the agency’s vacancies. “Even if the Senate were to surprise us and pass the House bill now, it takes a day for legislation to be enrolled. It then has to go to the White House. The President just doesn’t sit down and sign it; it has to be staffed up in the White House.”

Members on the committee expressed bipartisan frustration over the situation, which is unprecedented in the board’s 40-year history.

“The Senate has decided on its own … God knoweth why, that it’s not going to act until there’s a third nominee,” said Rep. Gerry Connolly (D-Va.), chairman of the government operations subcommittee. “Right now we have a crisis; they need to act. They have several choices in front of them, and they’ve chosen to ignore all of them.”

Now Robbins, who had also been appointed to serve concurrently as general counsel at the Office of Personnel Management, now has just one job.

He told the committee he has instructed MSPB staff to “keep calm and carry on” until “an authority of competent jurisdiction tells them otherwise.”

“For them, [today] it will be business as usual,” Robbins said.

The agency’s contingency plan details how the MSPB should function in the event that it were to lose all board members. Because the MSPB’s current executive director is a career employee and is serving in that role in an acting capacity, the agency’s general counsel, Tristan Leavitt, will keep up daily operations at the board.

Though the MSPB will continue to function in largely the same way it has for the past two years when it lacked a quorum, there are a few activities that will cease until the Senate can confirm at least one member to the board.

The agency can no longer issue studies and detailed analysis on the civil service. A pending study on sexual harassment within federal agencies, for example, won’t be published. Rep. Stephen Lynch (D-Mass.) said the House Oversight Committee relied on eight studies that MSPB had produced in the past to inform its work on whistleblower protections and disciplinary actions.

Petitions for review, which federal employees and agencies can file when they disagree with the initial decision from an administrative judge, will continue to stack up as they have for the past two years.

Robbins estimated it would take a staffed board three years before it could fully address the backlog of pending petitions for review, which sits at roughly 1,900. He spent the past two years reading and voting on those cases, but without another board member to issue his decision, the petitions languished with nowhere to go.

Still, there was bipartisan interest in resolving MSPB’s current vacancy challenges.

“This is an issue that the chairman and I and many up here are deeply concerned about,” Rep. Jody Hice (R-Ga.) said Thursday. “We’re concerned about the future of the Merit Systems Protection Board. I am very committed to ensuring that we have a successful operation at MSPB.”

John York, a policy analyst at the Heritage Foundation, said that he too was troubled by MSPB’s unprecedented situation.

“This is not a liberal or conservative issue. The good-functioning of the MSPB is a good-government issue,” he said, noting that he did see an opportunity to perhaps streamline the multi-layered process federal employees have today to appeal a disciplinary action.

Thursday’s hearing didn’t touch too heavily on a topic that small corners of Congress and the Trump administration have openly pondered in recent months: If the board loses all members, do its administrative judges lose their authority to operate?

Valerie Brannon, a legislative attorney at the Congressional Research Service, raised a variety of complicated legal theories that addressed the question but said MSPB’s administrative judges, for example, should be able to continue to function because their delegations of authority had been delegated before the board lost a quorum.

Robbins agreed. While he acknowledged the board could change in some ways — such as requiring a small fee from federal employees who choose to file an appeal — the agency itself serves as a vital legal option for federal employees.

“Whether the board exists as an MSPB going forward is a fair intellectual and policy question to debate, but the board’s functions, I have every confidence [it] will continue to exist going into the future,” he told reporters. “I don’t think our particular predicament right now will impact that at all.”

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