The quasi-judicial agency that determines federal employees’ challenges to adverse actions will no longer have any Senate-confirmed board members starting Friday, leaving its capacity to operate at all in question.
Mark Robbins, the lone remaining member on the Merit Systems Protection Board’s central panel, will leave the agency Thursday evening, when his term is set to expire. The other two slots on the board are currently vacant, meaning the agency will be without any Senate-confirmed leadership.
The vacancies will put MSPB on loose legal footing, lawmakers and analysts said on Thursday, as the agency is entering into a situation it has never experienced in its 40-year history. Robbins has instructed his staff to continue to operate normally, he told a panel of the House Oversight and Reform Committee, noting the board has been handicapped by a lack of a quorum on its central board for the last two years anyway. MSPB will continue to lack the capacity to make final decisions on appeals or issue studies of the civil service, but will still perform administrative tasks.
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“Everything else continues as normal,” Robbins, a Republican, said after the hearing. “The only thing different tomorrow morning is I won’t be there to sign off on a case that previously had gone to one of two empty offices. Now these cases will simply come up on appeal and go to one of three empty offices.”
Tristan Leavitt, appointed by Robbins in October to serve as MSPB’s general counsel, will now serve as the senior official in charge of the agency. Leavitt previously worked at the Office of Special Counsel as its principal deputy special counsel.
MSPB now maintains a backlog of 2,000 cases in which employees or agencies have appealed a regional administrative judge’s decision to the central board. Robbins has continued to weigh in on the appeals, but nothing can happen to them until a new member is confirmed. Come Friday, Robbins's opinions will no longer have any legal bearing.
The Senate Homeland Security and Governmental Affairs Committee has already approved two of President Trump’s nominees to serve at MSPB. Senate Republicans have said they will not vote on those two individuals, however, until Trump nominates a third board member to ensure the board maintains a Republican majority. Trump’s third nominee, Andrew Maunz, withdrew his name from consideration earlier this month.
Valerie Brannon, a legislative attorney at the Congressional Research Service, told the Government Operations Subcommittee on Thursday that the 1998 Federal Vacancies Reform Act bars the president from simply naming an individual to serve as a board member in an acting capacity. Brannon noted court precedent allows agency officers to delegate responsibilities to another government official and those delegations remain valid even after the original officer leaves. She also explained that the D.C. Circuit has ruled that a federal board would “cease to exist” if it lacked any members, though she said the Supreme Court has “expressly declined to adopt this position.”
“The relative dearth of case law exploring delegations under vacant boards means that the precise point along that spectrum, if any, at which such delegation may become impermissible remains unclear,” Brannon wrote in an analysis accompanying her testimony. She added that while Supreme Court precedent likely dictates that a vacant board would not “alter the nature of the authority” of the remaining subordinate officials at MSPB, it could “prevent the agency from appointing inferior officers.”
Rep. Gerry Connolly, D-Va., who chairs the Government Operations panel, said after the hearing he was unsure if Robbins’s strategy would hold up.
“I hope that works,” Connolly said. Without a board, he noted, “anything they do will be subject to legal challenges.” He added it will “put a cloud over everything.”
Connolly implored his Senate counterparts to drop their requirement for a third nominee and immediately advance the two nominees, Dennis Kirk and Julia Clark, whom the governmental affairs committee approved on a bipartisan basis. Rep. Jody Hice, R-Ga., who served as the top Republican during the hearing, also called on the Senate to act quickly.
“We’re concerned about the future of the MSPB,” Hice said. “We desperately need the Senate to quickly confirm these nominations.”
Tom Devine, a long-time whistleblower advocate and legal director at the Government Accountability Project, suggested MSPB may have to shut down operations entirely without any board members.
“There are questions whether without members the board could operate under the Constitution’s Appointment Clause,” Devine said. “There also has been discussion that administrative judges could issue preliminary, but non-binding, decisions. Under either of these scenarios, there would be no temporary or final rulings to enforce the Civil Service Reform Act generally, and the Whistleblower Protection Act in particular.”
Asked if administrative judges could continue issuing decisions after he leaves, Robbins said, “I believe so.” He said that he has told MSPB employees to continuing carrying out their duties “until another jurisdiction tells them otherwise.”
Devine said that without a properly functioning MSPB, agencies would lose all incentive to resolve an appeal before it reaches the board. He and John Palguta, MSPB’s former director of policy and evaluation, raised concerns that MSPB may be unable to issue stays on adverse actions with whistleblower retaliation claims pending before the Office of Special Counsel. Leavitt, who will soon serve as head of MSPB, confirmed to Government Executive the agency will no longer be able to stay OSC referrals.
Palguta explained there was little reason for the Senate’s delay, as approval of the two nominees currently pending would not lead to partisan decisions against the president’s interests. If the Democrat, Clark, and the Republican, Kirk, disagreed on a case, it would simply remain unresolved until a third board member was confirmed and could break the tie.
John York, a policy analyst at the Heritage Foundation, suggested agencies may actually carry the largest burdens while MSPB is incapacitated. The board typically sides with the agency, he explained, meaning some employees whose dismissal will eventually be approved are now receiving their salaries and are either back at work or on administrative leave.