The quasi-judicial board that determines federal employees’ challenges to adverse actions will likely to continue to be rendered impotent into next year, as the Senate appears unlikely to approve a slate of nominees to the panel before the legislative session ends.
The Senate Homeland Security and Governmental Affairs Committee scheduled a vote on Wednesday for three individuals President Trump nominated to sit on the Merit Systems Protection Board, but ultimately the committee failed to advance the nominations. The senators present were deadlocked on the nomination of Andrew Maunz, the most controversial of the nominees, with Sen. Rand Paul, R-Ky., voting no by proxy. Committee Chairman Ron Johnson, R-Wis., then recessed the vote before the other two nominees could be considered.
“These types of boards, you want to have a partisan majority in favor of the president’s policies,” Johnson said after the committee meeting, “and without being able to move all three that wouldn’t be the case.”
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Trump nominated Maunz to MSPB after he served as an attorney in the Social Security Administration’s general counsel office. His nomination troubled Democrats and some board observers over his role in defending the agency against discrimination and retaliation charges brought by a former SSA employee. While the long-running case pre-dated Maunz’ arrival at SSA in 2009, he and another agency attorney took over representation of SSA during the dispute in 2011. The plaintiff ultimately prevailed. In a ruling, a federal judge noted the office in which the plaintiff worked “was dysfunctional and under the management of supervisors whose management skills and performance were deficient in many respects, including unfavorable treatment of older women working in the office, compared with younger women and male attorneys." The judge noted SSA “should be faulted for its failure to comply with the statutory requirements and the purpose of the Civil Rights Act. It is ironic that a government agency would violate the protections afforded by the Civil Rights Act in the treatment of its employees and then vigorously attack the complaining employee when she attempts to seek redress in this court.”
The other two nominees, Dennis Kirk, who Trump nominated to serve as chairman, and Julia Clark, effusively praised federal workers and the laws that protect them during their confirmation hearings in July. The chairman-designate said MSPB should serve to “celebrate their service,” while Clark called civil service laws fundamental to a functioning democracy.
Johnson appeared skeptical his committee would act on the nominees before the end of the year, meaning Trump would have to renominate them or new candidates next year and restart the process from scratch.
“Unless you can all talk Sen. Paul into changing his mind or one of the Democrats,” Johnson said.
MSPB lost its quorum in January 2017—and with it, its ability to render decisions—resulting in the largest ever backlog of cases before the board. For the last 18 months, Mark Robbins has been the lone remaining board member. He has been able to perform administrative and executive functions, but not act on any petitions for reviews of decisions made by regional administrative judges. Those judges have continued to issue rulings, more than 1,500 of which employees or agencies have appealed to the central board where they now sit in limbo. Robbins has continued to weigh in on the appeals, but nothing can happen to them until a new member is confirmed.
If the three nominees were confirmed, Robbins would be replaced and his opinions would be thrown out. His term expires in March.
“It’s a concern,” Johnson said.
Jim Eisenmann, who joined MSPB as its general counsel in 2010 before becoming its executive director, a position he held until September, said the situation at the agency is going to get worse.
"The backlog keeps growing," Eisenmann said. "People keep waiting, including agencies."
He added that MSPB employees themselves suffer from a lack of top political leadership. MSPB's four-year research agenda is set to expire at the end of the year, making it unclear whether the agency will be able to continue its research responsibilities going forward. Career attorneys will continue to prepare opinions for board members, but their work will stall at the top until a quorum is restored.
"It’s bad all around," Eisenmann said.
Asked what legislation the committee can move before the end of the legislative session, Johnson pointed to the bills it has already passed and the roughly two-dozen Trump has signed into law. He said the measure to give the president authority to push through his reorganization plan is almost certainly dead.
The committee was also scheduled to vote on Ron Vitiello, Trump’s nominee to serve as director of Immigration and Customs Enforcement, but Johnson said not enough members were present. Even if they had been, he explained, opposition from the National ICE Council has cast doubt upon Vitiello’s confirmation.
Editor’s note: This story has been revised to clarify Andrew Maunz’s role in defending the Social Security Administration during a lawsuit with a former employee.