The Merit System Protection Board’s (MSPB) decision to issue a temporary stay regarding Brian Hawkins’ case demonstrates how hamstrung the MSPB is without a quorum.
Currently, there is only one person capable of carrying out the MSPB’s administrative and executive functions – Board Member (BM) Mark A. Robbins, who is acting as the temporary chief of MSPB pending nomination of other members. This has been the case since January 7, 2017, when Chairman Susan Tsui Grundmann resigned after serving in a holdover capacity for ten (10) months. Absent a Chairman or a Vice Chairman, the MSPB does not have a quorum to decide any adverse action appeals or any other appeals that come before the Board from decisions of Administrative Judges. The cases will just sit at the Board’s Headquarters in DC waiting for members to be appointed.
Delays of this nature are thus inevitable. However, this type of delay is exactly what VA Director David Shulkin hoped he would avoid under the new VA Accountability and Whistleblower Protection Act, which was signed into law this past June. Part of the VA Accountability and Whistleblower Protection Act involved streamlined timing of appeals to MSPB. Without a quorum, though, those appeals can’t be heard.
Similar scenarios are playing out with other MSPB appeals, and will continue to do so until either a new Chairman and/or Vice Chairman are nominated and approved by the Senate. Given that no names have been publically discussed for either post since Grundmann stepped down, it is unlikely that a quorum will be established any time soon.
When a quorum is finally established, the MSPB will have a large backlog of appeals by employees and agencies alike to get through. It could take years to get through all of the appeals on the docket. This will also have a ripple effect on any future MPSB appeals, since those cases must wait adjudication until the growing backlog of appeals is worked through. In short, this is a mess that won’t be cleaned up anytime soon. One only has to recall the backlog of appeals with the Administrative Judges and the Board when the DoD issued furlough notices to hundreds of thousands of employees causing great numbers of the employees to appeal to the Board to see how clogged the system can get.
These delays will be especially frustrating news to Shulkin, since so much attention has been paid to the length of time it has taken the VA to process disciplinary and adverse job actions against employees who have been deemed to be deficient in their duties. The longer VA employee appeals are bogged down in the MSPB, the worse it will look to those who sought quicker appeal resolutions.
However, none of this is the fault of Shulkin, any other federal agency head or Robbins. Everybody’s hands are tied by the lack of a quorum. The only resolution to this situation is for President Donald Trump to nominate someone for one of the two vacant MSPB positions and for the Senate to approve the nominee. Until that happens, the backlog of MSPB appeals will only grow larger.