Robert MacLean was the federal employee equivalent of a Super Bowl champion.
He was the first to wage a Supreme Court challenge to an employee firing by a federal agency under the Whistleblower Protection Act. He won decisively with a ruling in January 2015.
As significant as that victory was, it did not last.
MacLean, a whistleblower and former air marshal, was fired again this year, on March 21, less than one month after the Merit Systems Protection Board (MSPB) lost its last member.
The MSPB, a small, little-known quasi-judicial agency, hears appeals from employees and agencies regarding disciplinary actions. It should have three, presidentially appointed members. But the board is now defunct. In a striking example of government dysfunction, it has no members. That means MacLean cannot ask it to overturn his latest termination from the Transportation Security Administration (TSA).
MacLean sees a direct correlation between his firing and the inability of a member-less MSPB to stop it.
“When the board died,” he said, “they fired me again.”
Despite the timing, a TSA statement said, as expected, that “there is no relation” between MacLean’s firing and the lack of any MSPB members.
Without a functioning board, federal employees can appeal to the courts. But that costs more, leaving many effectively without an option.
But should the board be revived now?
Not everyone thinks so.
The MSPB can temporarily halt disciplinary actions when requested by the Office of Special Counsel, an agency that protects whistleblowers. This Office of Special Counsel has nothing to do with Robert S. Mueller III’s special counsel investigation of Russian interference during the 2016 election.
The three-member MSPB had been limping along with only one member, not a quorum, for all of President Trump’s time in the White House. That was until Feb. 28, the day the last member’s term expired.
Now the board is lifeless, a victim of the Senate’s dereliction of duty. It could confirm two nominees at any time. They have been approved at the committee level, but Senate leaders refuse to allow a vote on them until Trump nominates a third.
Meanwhile, the agency’s 2,000-case backlog continues to grow. Federal employees will have waited years for the resolution of their cases once the MSPB is revived from its moribund state.
“I think it’s horrible,” said James M. Eisenmann, a former MSPB general counsel and executive director. “It’s just a travesty.”
The protection of federal employees demands a functioning board.
Does it? Now?
Some federal employee advocates don’t think so, at least not under present circumstances.
A greater travesty in their view is a board dominated by appointees friendly to Trump who would issue rulings that could harm federal employees for years to come. Having gone without a quorum for more than two years, they are willing to wait another two rather that have appointees from a president who has waged war on federal unions, proposed compensation cuts, sought to undermine civil service due process protections and launched a 35-day partial government shutdown that hit feds the hardest.
“Given this administration’s track record on appointments in general, and on employee rights in particular, and general hostility to the civil service, we are very concerned about having a board with a majority of Trump administration appointees,” said Paula Dinerstein, senior counsel for Public Employees for Environmental Responsibility. “… Besides how it affects employees in individual cases, having an unqualified or biased board majority will likely create bad precedent that may be difficult to undo by a subsequent board.”
The flaw in that reasoning is Trump could be reelected. Then what? Even with Russian help for Trump, Democrats blew what should have been a sure thing in 2016. They could do so again in 2020, I shudder to say, leaving us with Trump for another four years.
Tom Devine, legal director for the Government Accountability Project and MacLean’s attorney, essentially has dual positions on the MSPB vacancies.
“In short, without an MSPB, there is no merit system,” he told Congress. The most obvious consequence of a nonfunctioning board “is that justice will be further delayed even for employees who ultimately prevail. … A [board] shutdown would prolong or even instigate unnecessary conflict by eliminating all agency incentive to settle any case. That is because during a shutdown, every agency would be winning in any action against any employee until the board again could stop it. Indeed, during a board shutdown, every agency basically could act with impunity, creating the specter of personnel anarchy.”
Yet, he, too, is wary of Trump appointees and worries the president could appoint a board that would, he added by email, “systematically gut whistleblowers’ rights.”
Meanwhile, federal employee rights are fading because the MSPB has been allowed to starve.