March 1 marks the first day in the entire history of the Merit Systems Protection Board that none of the three member positions will be filled, a situation that could have significant repercussions for federal employee watchdogs and the disciplinary appeals process.
“This is the longest absence of a quorum in the history of the agency, and unlike other agencies, the vacant seats at MSPB cannot be filled in an acting capacity,” said Rep. Gerry Connolly, D-Va., at a Feb. 28 hearing on MSPB’s ability to function without members.
“It is clear, however, that whistleblowers will lose, because the Office of Special Counsel will no longer be able to abstain a stay of retaliatory actions against them.”
The board has been hobbled since January 2017, when then-Chairman Susan Tsui Grundman’s term expired, leaving only Vice Chairman Mark Robbins still serving as a member.
In addition to his responsibilities as the sole Merit Systems Protection Board member, Mark Robbins will also be providing legal advice to Office of Personnel Management leadership.
MSPB cannot pass judgement on cases or change delegations of authority without a quorum of members, meaning at least two of the three seats filled. This staffing shortage has meant a backlog of appeals that reached 1,975 cases by February 2019.
According to Robbins, that backlog will likely take three years to process.
But now Robbins’ term, which was already extended for an additional year to give the president and Senate time to come up with new members, has expired and leaves behind an empty board.
President Donald Trump nominated Dennis Kirk and Andrew Maunz to be members of the board March 12, 2018, and nominated Julia Clark to the board June 20, 2018, but issues with Maunz’s nomination meant that none of the three made it out of committee consideration.
Those same three individuals were re-nominated when the new Congress began in January 2019, but Maunz withdrew his name for consideration.
Without three total nominations, the Senate has said that it will not vote to confirm any of the nominees.
The extent of the impact a vacant board will have on federal employees depends entirely on how much authority the board has delegated to career employees, according to Valerie Brannon, legislative attorney at the Congressional Research Service.
According to Brannon, who testified at the Feb. 28 hearing, statute does broadly give MSBP authority to delegate many operations to other employees, the majority of which will go to the executive director and then general counsel of the agency, but rulings on the backlogged cases are still impossible.
The lack of a board also means that MSPB cannot extend stays of punishment on personnel whose cases are currently pending review as potential watchdogs.
“Even if stays could be legally delegated down, they haven’t been,” said Robbins at the hearing.
More abstractly, an empty board means that administrative law judges will not receive briefings or policy on how to approach certain cases.
“Board vacancies have created a crisis of accountability for administrative judges. AJs are the soul of the merit system because they preside over administrative due process hearings, federal employees’ only day in court. And a major duty of the board is to provide guidance on proper interpretation of employee rights to them,” said Thomas Devine, legal director at the Government Accountability Project, adding that the “track record for whistleblower rights dropped sharply” after the board quorum was lost.
According to Devine, whistleblower-favorable rulings dropped from seven percent while the quorum was present to 2.2 percent recently.
“A [board] shutdown would eliminate all agency incentive to settle cases, because they’d be winning until the board was able to stop them again,” said Devine.
The House passed legislation Feb. 26 to extend Robbins’ term on the board for another year, but the Senate has not given any indication that it intends to vote on the legislation.