Daily Labor Report®

Shutdown Halts Federal Workers From Challenging HR Actions

Dec. 27, 2018, 8:12 PM

The board that hears federal workers’ personnel disputes is currently shut down, but it will face even bigger operational challenges in the coming months when it reopens.

The Merit Systems Protection Board won’t have any members next spring, Acting Chairman Mark Robbins told Bloomberg Law Dec. 27. Robbins’s seat is the only one currently filled on the three-member MSPB. He said he doesn’t expect any new nominees to be confirmed before his term expires Feb. 28.

“Having never been memberless before, the agency will face unique questions,” Robbins said.

Robbins is in holdover status, meaning he can’t remain on the board after the end of February. The Senate has signaled it won’t act on Trump’s three nominees for the MSPB before the end of the year, which means the process of considering new nominees will have to start from scratch in 2019.

The MSPB is a quasi-judicial agency that protects the rights of about 2.1 million federal employees and ensures that employment decisions in the executive branch aren’t partisan or political. It hears appeals of administrative judge rulings on a wide variety of allegations, ranging from whistleblower retaliation to inappropriate political activities, nepotism, and the violation of veterans’ preference laws.

The board, which is closed as part of the partial government shutdown, can’t rule on appeals unless it has at least two members. Robbins, a Republican appointed by President Barack Obama, has been the board’s only member since Jan. 7, 2017, meaning the board hasn’t been able to issue final decisions since that time.

He’s also been tapped by President Donald Trump to take on another job while continuing to run the MSPB, a move that could raise possible conflicts-of-interest questions. Trump earlier this month named Robbins general counsel for the Office of Personnel Management.

Growing Backlog

There’s a backlog of about 1,850 appeals at this time, and many more will be awaiting the board’s new members once they are confirmed, Robbins said. Although the board keeps a tally of its case backlog, that function is temporarily suspended because of the partial government shutdown that began Dec. 22, he said.

Robbins himself remains on the job at the board because he is “excepted” from the shutdown, he told Bloomberg Law. About 240 MSPB employees have been sent home because of the stoppage, although Robbins can deem them “essential” and return them to work if needed, he said.

The board’s suspension of case-processing activities during the shutdown is likely to prolong a period during which some of the most important personnel disputes in the government, including claims of whistleblower retaliation, might simply lack a forum for adjudication.

Trump’s decision to name Robbins Office of Personnel Management general counsel adds another wrinkle. The OPM is the government’s central human resources office.

The appointment isn’t formal yet because the partial government shutdown is preventing the completion of the necessary paperwork, Robbins said.

Conflict of Interest?

The OPM general counsel appointment could potentially represent a conflict of interest because the MSPB at times is responsible for adjudicating challenges stemming from that agencies’ policies.

Robbins said he will stop issuing final decisions once the appointment is finalized to avoid such a conflict. Robbins has been “voting” on MSPB appeals as the board’s sole member since Jan. 7, but without a quorum the rulings don’t have the force of law. The new board will be able to look at the rulings if they want, but whoever joins the board after Robbins leaves will begin voting again from scratch, he told Bloomberg Law.

“In theory or on paper, one person holding both positions would create a conflict because agencies that want to challenge an MSPB decision in federal court have to go through OPM’s general counsel to get there. If the GC at OPM is one of the people who issues a board decision being appealed, we’d have a problem,” Deborah Hopkins, executive director of the Federal Employment Law Training Group, told Bloomberg Law.

“Because Mr. Robbins is the sole member at MSPB and there have to be two members to make a quorum, he can’t issue any decisions. While we know he’s been voting” on appeals filed with the board in the last two years, “the only way that those decisions will go anywhere is if at least one other nominee would be confirmed, and would start voting on cases before Mr. Robbins’ term expires at MSPB February 28, and after he is confirmed at OPM,” said Hopkins, whose organization trains federal managers on matters of employment law.

This isn’t going to happen, Hopkins said.

The pending OPM appointment at least means that Robbins will be in place at the MSPB through February, he said.

“I have pledged to the administration that I will stay at the MSPB as long as legally possible,” meaning until his holdover appointment is over, Robbins said.

To contact the reporters on this story: Louis C. LaBrecque in Washington at llabrecque@bloomberglaw.com; Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com

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