Trump’s Nominee for Employee Protection Board Has Checkered Past With Protecting Employees
Employee who worked in "dysfunctional" and "deficient" office faced "antagonism" in court from nominee, judge said.
In 2015, a federal court awarded a Social Security Administration employee more than $200,000 to cover attorney fees and other costs associated with the employee’s wrongful termination and ensuing legal battles. In issuing the ruling, Richard Matsch, a senior judge for the U.S. District Court for the District of Colorado, said SSA’s lawyers had acted with “aggressiveness” and a “lack of professional objectivity expected of counsel.”
One of the two attorneys Matsch was referencing was Andrew Maunz, President Trump’s choice to serve as a member on the Merit Systems Protection Board’s three-person central panel. The case resulted from an employee who was fired, and later reinstated by MSPB, for reporting discrimination and a toxic work environment in SSA’s Office of Regional Counsel. That office falls under the purview of the Office of General Counsel, where Maunz was, and is, a senior attorney.
In 2007, Laura Ridgell-Boltz made “informal complaints” that older, female attorneys faced discriminatory treatment in her office. Days later, Ridgell-Boltz was fired. An MSPB administrative judge later ruled she wrongfully terminated and reinstated her to her job, a decision that was affirmed by the central board. Ridgell-Botlz then pursued various avenues to win damages and, eventually, attorney fees. The proceedings were unusually testy, Matsch said, with both sides filing numerous motions. This led the cases and appeals to drag on for years, and Ridgell-Botlz’s attorney fees climbed to more than $438,000.
Matsch eventually ruled that SSA was on the hook for 55 percent of that, or $241,000.
While SSA initially turned to the U.S. Attorney’s Office to represent the agency in the case, Maunz, who joined the agency in September 2009 after the case was initiated, and another internal lawyer eventually took over.
“The substitution of Department of Justice lawyers for representation of the agency by its own lawyers may be considered a questionable conflict of interest,” Matsch said in his opinion. Maunz was, in essence, defending accusations against his own office within his own agency.
The regional counsel’s office was “dysfunctional and under the management of supervisors whose management skills and performance were deficient in many respects, including unfavorable treatment of older women working in the office, compared with younger women and male attorneys," according to the judge's ruling.
When Maunz and his colleague took over the case, Matsch said, things turned combative.
“When agency counsel entered the case the proceedings changed in tone and the defense was pursued very aggressively,” he said. “It is somewhat problematic when a government agency is represented by counsel in its employ. Trial advocates are expected to be objective in their assessment of their client’s position and as officers of the court they are obliged to conduct the case in the spirit of Rule 1 of the Rules of Civil Procedure, seeking the just, speedy and inexpensive determination of the proceedings. That did not happen in this case.”
Matsch called it “ironic” that a government agency would “vigorously attack” an employee seeking redress for violations of the Civil Rights Act. The “hostility” between Ridgell-Boltz and SSA was so intense, the federal judge added, that the courtroom proceedings were “affected by that antagonism.”
Cheri Cannon, a former litigator in the Small Business Administration’s general counsel’s office and chief counsel to the MSPB chairman, said that people sometimes “get hot in the heat of litigation.” She said it would be important for Maunz to keep an even temperament at MSPB, which she explained maintains a “very professional” staff. Cannon found the underlying claims against SSA’s legal office particularly troubling, and noted a jury in 2012 ruled in Ridgell-Boltz’s favor in her initial Civil Rights Act case after just four hours of deliberation following a six-day trial.
“It wasn’t even close,” said Cannon, now a managing partner at Tully Rinckey. She also noted the rare “pointed language” from the federal judge, saying senators voting on Maunz’s confirmation should follow up on both his courtroom behavior and any role he had in the management of the counsel’s office. “It’s something that should be asked about.”
MSPB is a quasi-judicial agency tasked with ensuring agencies enforce merit systems principles and avoid prohibited personnel practices. It has been unable to function normally for more than one year, as its central board has just one presidentially appointed, Senate-confirmed member remaining. Administrative judges have continued to issue rulings, but all appeals to the central board have been delayed. The agency now maintains the largest backlog of cases in its history.
While it was initially thought that Maunz’s nomination would enable MSPB to regain a quorum and to resume issuing decisions, the agency has since said the White House appears to have nominated Maunz to instead take the place of the lone remaining board member. On Thursday, Trump nominated Dennis Dean Kirk to also serve as a board member. Kirk is a former attorney with the Interstate Commerce Commission and the Army. If the Senate confirms both Kirk and Maunz, MSPB would regain its quorum.
Editor’s note: This story has been revised to clarify Judge Matsch’s comments regarding the Ridgell-Boltz case and to note that Andrew Maunz joined the Social Security Administration after the case was initiated.