At least in theory.
In practice, the board is stagnant, because the three-member body only has one member. It’s another example of the undermining of a government agency by President Trump’s foot-dragging on appointments.
It’s been that way since Jan. 7, when Susan Tsui Grundmann, the former chairwoman, quit. There was already one vacancy, so her resignation left Mark A. Robbins home alone. President Trump has nominated no one for the two vacancies, leaving those seats empty until who knows when.
As of Monday, the board had 660 pending cases in its steadily growing backlog.
The MSPB is symptomatic of the administration’s larger problem in making presidential appointments. As of Tuesday, Trump had nominated fewer officials, fewer had been confirmed, and the time from nomination to Senate confirmation was longer than for any administration at this point since at least the George H.W. Bush presidency, according to tracking data compiled by The Washington Post and the Partnership for Public Service. The White House did not respond to a request for comment.
The appointment lethargy “absolutely diminishes the ability of the government to perform vital services,” said Max Stier, the Partnership for Public Service’s president and chief executive.
The problem is more acute at the MSPB because “acting” officials cannot substitute for confirmed board members, as is the case for many positions in other agencies. Some MSPB work is getting done, but not the tasks only board members can do. That includes hearing appeals of rulings by MSPB administrative judges and issuing formal reports.
The oldest case in the backlog was filed in February 2015. For individual appellants who contend they were unfairly treated, it’s a matter of justice delayed being justice denied. They stew in their punishment, which in some cases leaves them unemployed, not knowing when their cases will be heard, let alone resolved.
Tommie “Toni” Savage, a whistleblower from Huntsville, Ala., said she has been “coping with the stigma of being blackballed and terminated” since her “illegal termination” in November 2009 from the Army Corps of Engineers. The MSPB ruled in her favor in September 2015, ordering the Corps to redo her performance evaluation and give her a performance award and some back pay. But the board also sent the case back to an administrative judge for further consideration of Savage’s hostile work environment claim. In August 2016, her lawyers appealed back to the MSPB the judge’s refusal to order her reinstatement. Her case has been stuck there since. The Corps had no comment on her case.
In addition to not having the complete victory Savage feels she is due, her lawyers cannot recoup legal fees from the government, now totaling about $900,000, until the case is resolved.
“Although the lawyers prevailed on most of the issues raised, a petition for the fees owed cannot even be submitted until after the MSPB rules on the pending appeal,” said Michael Kohn, Savage’s attorney.
No one knows how long it will take to eliminate the backlog after the board gets a quorum. Most of those seeking to overturn a demotion or dismissal probably will be disappointed once their appeals are heard. The MSPB upholds agency decisions about 85 percent of the time.
Meanwhile, the lone board member, Vice Chairman Robbins, has plenty to do, even though you can’t tell it by the board’s work product.
“When we lost our quorum,” Robbins recalled in an interview, “my father said, ‘What’s it like to be the highest-paid bureaucrat in Washington with nothing to do?’ ”
But appeals keep coming and the agency needs managing, keeping Robbins busy.
“I continue to review those cases. . . . I continue to do the research necessary,” he said. “Then when I’m done with those cases, they go to one of two empty offices where they are piling up.”
In most cases the MSPB considers, it is not a matter of delay denying justice, Robbins said. The board takes appeals, mostly from individuals but also from agencies, of decisions by administrative judges. Those judges hear about 7,000 cases a year. Of that, about 1,000 are appealed to the board. So the majority of cases have a final decision before getting to Robbins. For the remainder, Robbins reviews them as he normally does, but they cannot be resolved until there is a board quorum.
Robbins points to a way around the backlog — going to the U.S. Court of Appeals for the Federal Circuit. But that clearly is not a route of choice for many appellants, perhaps because it is a more expensive process.
Sen. Tammy Baldwin (D-Wis.) is working on legislation that would allow federal whistleblowers to move cases pending for 120 days before the MSPB or the Office of Special Counsel to a U.S. District Court.
Meanwhile, Savage continues to endure the stigma and self-esteem issues that come with being fired.
“That’s been one of the obstacles with moving forward with my life,” she said. “I have to believe that there is still justice somewhere, I have to.”
Scenes from Trump’s second six months in office