Two of the board’s three seats have been vacant for the entire Trump administration. President Trump didn’t nominate a new board for more than a year — and then a Senate committee deadlocked last year on his picks. Now, the third seat could be empty, too, unless the Senate can confirm the same three people.
Experts say they’ve never heard of a similar case. At midnight on Feb. 28 — when a one-year extension of Robbins’s seven-year term expires — the board could enter uncertain legal territory. Justice Department attorneys have told Robbins that once he leaves, the office could be operating illegally.
House and Senate lawmakers, scrambling to head off a crisis, have scheduled hearings for this week.
Coming after the recent partial government shutdown and with another possible shutdown lurking later this week, the quagmire at the board is another blow for federal workers. Employees who have been waiting for their appeals of firings, demotions, suspensions and alleged misconduct to be heard will have to wait longer; even if a new board were appointed soon, it could take two years to eliminate the backlog.
The board has been “basically neutered, and I think it’s ridiculous,” said John Palguta, a retired director of the board’s research department. “It’s not overly dramatic to say that the civil service is at risk here.”
The board has evaded the crosshairs of a White House that has proposed eliminating or slashing the budgets of dozens of small agencies. But in an administration determined to shrink government and with it protections for civil servants, the quasi-judicial merit systems board has been kept more or less frozen in time.
“The context of what’s happening here,” said Rep. Gerald E. Connolly (D), whose Northern Virginia district includes tens of thousands of civil servants, “is an administration that’s hostile to employee rights. This seems deliberate and by design.” A White House spokesman did not respond to a request for comment.
The agency, with eight regional offices, was created in 1978 to ensure that personnel decisions in the executive branch are free from partisan politics. Administrative judges hear complaints from employees, and their rulings can be appealed to the three-member, bipartisan board. Members serve staggered terms.
With two of the three seats vacant for more than two years, the board has been unable to render decisions. During his lonely tenure, Robbins dutifully has written his opinion on 1,900 cases and filed them in cardboard boxes; those decisions will land in the trash if no other board members join him before he departs, he says.
His board of one already has created legal predicaments. Congress passed a special statute last year giving just one member the authority to order agencies to grant relief in cases involving whistleblowers. “We joked that it’s the Mark Robbins Home Alone Act of 2018,” said Jim Eisenmann, who was executive director until last fall.
Robbins, 59, a Republican holdover from the Obama administration who wears small, round wire-frame glasses, has stayed even-tempered. “When people say, ‘Has Robbins been sitting around doing nothing for two years?’ I tell them I’ve been voting cases,” he said on a tour of his darkened headquarters last month when his staff was furloughed. “That presupposed I’d be joined by two people by now.”
Stuck in the backlog are civil servants who have been waiting years for resolution. Some won rulings from administrative judges in their favor, only to have them languish before the board when the agency appealed. The government is required to give them back pay or return them to work while they wait. But amid the dysfunction of the past two years, that hasn’t always happened.
In September 2017, an administrative judge ordered the FBI to reinstate Matthew Litton to his job on the agency’s elite Hostage Rescue Team and give him hundreds of thousands of dollars in interim pay. He had been fired for failing to disclose drugs he was taking to deal with infertility.
But the FBI’s appeal has been pending since then. And Litton’s attorney says the FBI has taken advantage of the void on the board, violating the judge’s order to restore his salary. “We made a stink,” said Kristin Alden, a D.C. employment lawyer, “but there was no one there to listen to us. They knew there was nowhere for us to go. We were stuck.”
An administrative judge also sided last year with a file clerk at Veterans Affairs who was fired and is back to work while the agency appeals, said her attorney, Kevin Owens of Silver Spring, Md. But he said VA still has not paid six months of wages she lost after her firing.
The crisis has been building since Trump took office. He was slow to staff the government, lagging behind his predecessors in nominating political appointees. After 14 months, Trump finally nominated two from his party and one Democrat for the merit board, as the law requires.
None made it out of the Senate Homeland Security and Governmental Affairs Committee during the last Congress, after partisan objections led to a tie vote on one of the Republicans. Trump renominated the same group in January. It is unclear whether anyone has enough votes to get out of committee. Chairman Ron Johnson (R-Wis.) said he would continue to work with his colleagues and the White House to “ensure the Merit Systems Protection Board has the three confirmed members needed to function properly.”
Robbins said he was on a conference call last fall with attorneys from the Justice Department’s Civil Division on an unrelated board matter when he offhandedly mentioned that his term expired at the end of February.
Several attorneys grew alarmed and questioned whether the administrative judges could issue rulings legally without a board. If not, the judges, staff attorneys and support staff would be superfluous, they argued. “They said, ‘If a nominee isn’t confirmed, wouldn’t the board have to close down?’ ” Robbins recalled.
The attorneys told him they would investigate the legality of an independent agency continuing operations without a board. Robbins said he has not heard back. Kelly Laco, a Justice spokeswoman, declined a request for comment.
Opinion is divided on what should happen next.
“Without a Board, it seems difficult to imagine how they can fill their statutory mandate,” Laurie Beyranevand, a professor of administrative law at Vermont Law School, said in an email. Her reasoning comes from her reading of the Code of Federal Regulations, Section 1201, which directs the three-member board to handle appeals and set policy for the agency.
But William Wiley, a former board chief counsel, said the agency’s functions would simply be delegated to the staff. “It seems to me there’s still an organization that exists,” he said, “unless the Trump administration just doesn’t want the board to be there at all.”
Experts agree that while other independent agencies have gone without board quorums, none has faced the impending scenario of the merit board.
The Senate committee has scheduled a vote Wednesday on the slate of nominees. As a backup plan, it will consider legislation to extend Robbins’s holdover term by a year or until another member is confirmed.
But that would create new complications. Trump tapped Robbins in December to serve concurrently as the board’s acting chairman and acting general counsel for the Office of Personnel Management, the same position he held in the George W. Bush administration.
He’s been shuttling back and forth since. The dual appointment creates a potential conflict of interest, though. The personnel office weighs in on some board cases that involve personnel policies across the government. Robbins has recused himself from writing any cases until he leaves.
With his last day inching closer, he’s wistful. He prays that he doesn’t have to walk out the door during another government shutdown because no one would be there to say goodbye.
He plans to pack up his bust of Teddy Roosevelt, his old-school Rolodex and a towering ivy plant.
For his staff, he’ll leave a large sign he found years ago in the trash in his condo building. It reads, “Keep Calm and Carry On.”
He’ll also leave behind dozens of boxes containing his decisions, which spill into the hallway and beckon to be read by future board members. If Robbins is gone before they arrive, he’ll become a former member of the board, his voice and vote but a distant echo as two years of his work becomes null and void.