What in the World is Going on at MSPB?

By William Wiley, March 14, 2018

You have to understand the role and the operation of the US Merit Systems Protection Board plays in our country to fully appreciate what is happening there now. You experienced readers will have to forgive us for some basics before we can get to the meat:

• The good citizens of our great country are served by its government. The government is made up of 2+ million civil servants who, to varying degrees, do the best they can to make government work.
• When a federal employee breaks bad (unacceptable performance or serious misconduct), his supervisory chain has the right to fire him. Because he is protected by civil service laws from unfair treatment by his supervisors, that (now former) employee has the right to defend himself in an appeal to MSPB.
• Usually, there are two levels of review at MSPB. First, a Board administrative judge conducts a hearing, then issues a decision based on the evidence and argument as to whether the appellant stays fired or gets his job back. Next, that judge’s decision can be reviewed, affirmed, or set aside by the three members who make up the Board itself.
• The Board’s members are Presidential appointees, confirmed by the Senate, to serve specific seven-year terms. The terms are independent, and their expiration dates overlap. Once confirmed by the Senate to be a member, the President has the independent authority to designate a member as either the Chairman, Vice Chairman, or simply Member.
• The most recent term expiration occurred a couple of weeks ago, on March 1, 2018. That term currently is occupied by Mark Robbins, an Obama appointee who continued to serve even after the change in administrations. Prior to the expiration of that term, Mr. Robbins effectively could not be replaced by the President. Once that term expired earlier this month, Mr. Robbins could “hold-over” and continue to serve as a Board member for another year. However, the President would now be free to replace him at any time after March 1.

We have had two vacancies at the Board since January 2017. With only one remaining member (Mr. Robbins), MSPB lacked a quorum and could not issue final orders regarding the appeals of judges’ decisions. As of today, there are about 875 appeals of judges’ decisions that are backlogged at the Board due to this year-long lack of a quorum. Were the White House to nominate just one more member to the Board, along with the 800+ internal votes already cast by Mr. Robbins, that new member could also vote on a case, affirming or setting aside a judge’s decision, thereby releasing that appeal from the case backlog.

With that as background, we serious Board watchers – and others who are concerned about an effective civil service – were delighted to see that last week the President announced the nomination of a new Board member, Andrew Maunz, an individual who is a solid career attorney with exceptionally high credentials, to become a final adjudicator of removals from the civil service. FINALLY, after all these months, we expected we could begin to see things start to move at the Board. Appellants would begin to find out if they were to stay fired or were to get their jobs back. Back pay would stop accruing against agencies who might be in a position of losing appeals to the Board. Whether we ultimately were to agree or disagree with the decisions that we expected to see begin to be issued, at least the backlog would start to be reduced, and justice finally would be done.

Not only were we impressed that the White House had selected a highly qualified and experienced individual to serve as a new Board member, the President’s respect for the math was also impressive. You see, had the President at the same time nominated TWO new members instead of one, that would have doubled the time necessary for cases to start being voted out and the backlog thereby reduced. It should be relatively obvious that two people take twice as long to consider and adjudicate an appeal as would one. In addition, three members are more likely to disagree than are two, thereby increasing the amount of time necessary to resolve those disagreements. Yes, many of us were doubly blown away by the move the White House was making to replenish the Board.

And then the fine print of the White House announcement started to seep in.

Thanks to the help of several astute readers of our newsletter, we now see that new member nominee Maunz had been identified to take over the term currently occupied by Mr. Robbins – the term that expired on March 1, 2018, set to expire March 1, 2025. With his confirmation, Mr. Maunz will become the Vice Chairman and displace Mr. Robbins, thereby voiding the internal votes Mr. Robbins has been casting since becoming the sole remaining member of the Board on January 6, 2017. Therefore, instead of us joyfully celebrating that soon we can expect to see final orders flying out of the Board’s backlog with two members voting, we started to believe that we would continue to have a one-member, no-quorum Board.

And THEN, late last week, we got another announcement by the President of an intent to nominate a second individual to the Board. If confirmed, Dennis Dean Kirk will become the Board’s new Chairman, taking over the vacancy left when the Board’s former chairman quit before her term expired in early 2017. That term is set to expire March 1, 2023. Fortunately for us all, Mr. Kirk has federal experience as an attorney and has previously represented before the Board while in private practice. Past presidents have not seen prior federal employment experience as a necessary prerequisite to be a Board member.

Interesting observations about where we are with all of this:

1. Historically, the designations of Chairman and Vice Chairman have been awarded by the President to the two Board members who are members of his party. As the Board cannot be composed of three members from the same political party, the betting money is that the remaining Member’s position will be filled by a Democrat appointed by President Trump (although an Independent or some other non-Republican would serve just as well).
2. The President has appointed the new Chairman to a term expiring in 2023. He had the option of appointing him to the term ending in 2025. One might think the President would have put the Board’s chief executive officer into the position with the longer term for the sake of continuity. But, one would be wrong.
3. While appointments could have been made to the Board that allowed Mr. Robbins to continue to hold over and his previously-cast internal votes to count, the White House has selected terms to be filled that displace Mr. Robbins and cancels out all the work he has been doing since January 2017. Whether this was an intentional decision or an oversight, the effect is the same: soon we can expect to have a bevy of new members at MSPB starting to work away at 875+ cases with no voting assistance from any former members.

Gentlemen, on behalf of our little training company, we welcome you to the battle, and wish you the best of luck in helping the civil service protections once again become a reality. Just try not to think about how many pages of reading await you when you have to adjudicate 875 appeals, just to get started in your new job. Wiley@FELTG.com