Litigation Constipation

By William Wiley, October 18, 2017

In the world of civil service law, we live and die by the works of our alphabetical oversight agencies: MSPB, EEOC, FLRA, OPM, FSIP, and OSC. When they shut down, some part of the federal employment system shuts down, as well.

Coming out of the Obama administration into the Trump administration, we were starting to hurt. A number of vacancies and early resignations or firings had left the senior-most political positions in those agencies barren. People had left, but none were being nominated or appointed to replace them.

Recently, however, the White House seems to have recognized the important roles these agencies play in our government, and appointments began to flow: new commissioners at EEOC, two new nominees and a re-appointment at FLRA, a new director at OPM, seven new members of the Federal Service Impasses Panel, and a new Special Counsel over at OSC. Yes, White House personnel has been working overtime to get these civil service oversight agencies up and running and carrying their respective loads relative to federal employee rights and protections.

Except for one.

What in the world is going on with MSPB? The agency responsible for making sure that removals and other serious actions taken by agencies are implemented fairly has effectively been shut down since the first week in January when one of the two remaining members quit early. A single hold-over member of a three-member Board cannot issue decisions for the lack of a quorum. Therefore, for the past 35 weeks or so, approximately 750 challenges to decisions made by MSPB’s cadre of Administrative Judges have been added to the Board’s headquarters backlog with nothing coming out the other end. And every work day, another four or five appeals are added to the pile, appeals in which the future of some poor fired soul hangs in the balance, and agency back pay liability continues to stack up.

The word on the street is that the remaining member, Acting Chairman Mark Robbins (a Republican by persuasion), is hanging in there, doing a yeoman’s job of voting on four or five cases every day as they are presented to him. Of course, no Board opinions can be issued with just one vote. That means that somewhere within MSPB’s palatial office space there’s a room filled with about 750 case files with decisions already drafted by the career staff, and Chairman Robbin’s vote sheet attached to the top. I’ve been there. Some files are six inches think; some are six copy paper boxes in size. Some appeals are exceedingly easy to resolve, others are exceedingly hard. And they are just sitting there. Waiting.

So how will this tale of woe come to an end? Well, poopsie, I’m glad you asked. There are two likely optional outcomes:

1. The President nominates and the Senate confirms a single new Board member. Hopefully, it would be someone like our colleagues, Peter Broida, Barbara Haga or Rock Rockenbach. Someone who already knows Board law cold and could begin immediately voting on cases relying on a deep well of previously-accumulated civil service law knowledge. That new member could be locked in the storeroom with all those pending cases, and fed red meat and Mountain Dew until he or she had voted on them all. Along with the prior concurring vote of Chairman Robbins, those appeals that now have votes from two members can be issued post haste, resolving issues some of which have been pending for a couple of years.
2. Chairman Robbins cannot be replaced until his term expires at the end of February. The President could wait until that time to name two new Republican members (or three new members, if he has a Democrat he likes) thereby replacing Mr. Robbins and simultaneously voiding his 1000 votes that have accumulated over the previous 14 months. Then, we would lock the new members in that room full of pending cases, and hope to goodness that they are quick learners agreeable in their jurisprudence. If we end up with this option, we’re going to need a LOT of Mountain Dew.

Were it not for the activity with the other appointments, it would be easy to conclude that the White House just hadn’t begun to focus on staffing up the civil service oversight agencies. But they have indeed been focused in White House personnel, even needing to nominate a second OPM director when the first nominee withdrew. It’s starting to appear as if there is a method to their madness, a rationale for letting all these cases accumulate when one name for one Board position sent to the Hill early last spring would have avoided this litigation constipation.

What could that rationale be? Are they intentionally positioning themselves to void Chairman Robbins’ votes? Are they having trouble finding someone willing to be appointed to a job that has a ten-month backlog of work to be done? Do they mistakenly believe that by keeping the Board below quorum, the Administrative Judges cannot set aside agency removal actions?

Or, is there something bigger on the horizon? There would be no need to name members to a Board if the federal agency which housed that Board no longer existed. Recent changes to the law have made MSPB irrelevant to certain employees at DVA. More changes in the future could make it irrelevant to the entire civil service, reducing the due process required for removals from federal employment to decisions made within an agency. Next November will be the 40^th anniversary of the law that created MSPB. Perhaps there will be no need for a 41^st Board anniversary.

Well, here at FELTG, we don’t know the answers. All we do know is that there is an insidious continuing harm being done to the civil service system every day that MSPB is not functioning. Here’s hoping that if there is indeed a plan behind the madness, that the benefit of the delay in filling these positions is worth the cost of letting then sit vacant. Wiley@FELTG.COM