It has been more than two years since there was a quorum at the Merit Systems Protection Board (MSPB or Board). This means that any Petition for Review (PFR) filed with the MSPB is sitting in a file at the agency.
Until there is a quorum, no decisions on these types of cases will be made. If you are an employee who has filed a PFR and awaiting a decision, instead of going on to federal court, your wait is not over.
There is movement in Congress that will probably resolve the most immediate problem at the Board though.
Political and Legal Mess at the MSPB
As unusual as this is, the situation at the MSPB continues to get more complex. Here is what is happening as Congress struggles with a solution.
Office of Personnel Management (OPM) Acting Director Margaret Weichert has announced that Mark A. Robbins will be OPM’s new General Counsel. Robbins previously served as OPM General Counsel from 2001 to 2006. He has also served as the General Counsel of the U.S. Election Assistance Commission and as a Senior Rule of Law Advisor for the State Department in Iraq.
Robbins also happens to be the Chairman of the MSPB. In fact, Robbins is the only member of the MSPB.
His term expires on March 1, 2019. At midnight on March 1st, there will not be any MSPB members to process appeals from federal employees seeking a decision on their employment concerns, which include appeals of removals and a number of disciplinary actions.
Robbins will then, presumably, depart from the MSPB as his term cannot be renewed. He is currently serving at the agency in a one-year statutory carryover year.
Congress to the Rescue?
So, what will happen after March 1st?
Maryland Congressman Elijah Cummings (D-MD) introduced a bill in February that read:
The term of office of any member of the Merit Systems Protection Board…serving as such a member on the date of enactment of this Act shall be extended for a period of one year beyond the date the member’s service would otherwise end….
But there was a catch. His bill also contained a provision that would restrict the MSPB Chairman from serving in another position in the federal government. In plain English, the bill would have prevented Mark Robbins from also serving as the General Counsel of OPM.
In other words, raw party politics was on full display for anyone paying attention to the minutiae that regularly occurs in Congress.
On February 25th, the Cummings bill passed in the House but with one major change. The portion of the bill that would have prevented MSPB Acting Chairman Mark Robbins from also serving at the OPM General Counsel was removed from the bill.
The bill passed in the House without a roll call vote. In other words, there was not a record of how each Congressman voted.
According to GovTrack, the Cummings bill now has a 36% chance of being passed.
A Senate Bill
On February 7th, a similar bill was introduced in the Senate by Wisconsin Senator Ron Johnson (R-WI) and co-sponsored by Gary Peters (D-MI). The text of the bill was not available for some time but has now been published.
This bill, like the Cummings bill, concerns the term of MSPB members. It would allow the continuation of a term if the person “is the sole member appointed to the Board”. In that instance, the person could remain in office until a successor has been appointed and qualified or a “date that is 2 years after the date on which the term of the member would otherwise expire….”
What Does This Mean?
In effect, it appears both the Senate bill and the House version of a similar bill (the Cummings bill) would allow Mark Robbins to stay in office at the MSPB for now and also serve as the General Counsel of OPM.
This would resolve the immediate problem of not having any person in office as an MSPB member. It does not help those federal employees who have filed a Petition for Review at the MSPB to receive a decision on their cases in the immediate future. That solution will not arrive until new MSPB members are nominated and confirmed by the Senate.
The Senate bill is now given a 75% of being passed. Chances are, the House and Senate will agree on the Senate bill, it will be quickly signed by President Trump, and the immediate problem will be resolved.