Government Operations Subcommittee Hearing: Effects of Vacancies at the Merit Systems Protection Board
The purpose of the hearing is to examine the effects on the mission of the Merit Systems Protection Board (MSPB) caused by vacancies since January 2017, the independence of MSPB since its sole member was appointed by President Trump to serve concurrently as General Counsel of the Office of Personnel Management (OPM), and the continuing operations of MSPB if it is left with no Members at the expiration of the remaining member's extended term of office, in March 2019.
MSPB was created by the Civil Service Reform Act of 1978 as an independent agency to adjudicate individual federal employee appeals in cases alleging violations of federal civil service laws. Whistleblowers often appear before MSPB to appeal reprisal actions taken against them. MSPB also ensures compliance of the Executive Branch with merit systems principles through studies and reviews of major rules issued by the Office of Personnel Management. MSPB is led by a three-member Board, whose members are appointed by the President to seven-year terms.
Since January 7, 2017, MSPB has operated without a quorum, the longest absence of a quorum in the history of MSPB. The sole Board member is Mark Robbins, a Republican who was confirmed by the Senate in 2012. Robbins’ seven-year term expired on March 1, 2018, but he continues to serve in a holdover capacity which is currently limited by statute to one year.
In 2018, President Trump nominated three candidates for MSPB—two Republicans and one Democrat—but they were not confirmed by the Senate before the end of the last Congress.
In January 2019, President Trump renominated the three candidates, and the Senate Homeland Security and Governmental Affairs Committee recently cleared two of them. The third withdrew his name from consideration. However, these two nominations will not be considered until the White House names another Republican nominee.
On Monday, February 25, 2019, the House passed, as amended, H.R. 1235, the MSPB Temporary Term Extension Act, to provide a one-time, one-year extension of the current member’s term. The bill passed by voice vote and moved to the Senate where its consideration remains uncertain.
Ms. Valerie Brannon
Legislative Attorney, Congressional Research Service
Mr. Thomas Devine
Legal Director, Government Accountability Project
Mr. John Palguta
Former Director of Policy and Evaluation, Merit Systems Protection Board
Mr. Mark Robbins
Acting Chairman, Merit Systems Protection Board
Mr. John York
Policy Analyst, Heritage Foundation