By William Wiley, December 18, 2018

Oh Lordy, we’re about to lose the civil service. Way back in 1883, Congress created a federal civil service based on merit instead of patronage. The protector of that merit-based civil service has evolved over time and today is recognized to be the US Merit Systems Protection Board. The Board itself is composed of three Presidentially appointed, Senate-confirmed individuals who review, among things, the firings of most all federal employees. That review is impartial and designed to ensure that removals are based on merit, not some illegal, biased motivation. Since 1883, the government has had the back of its employees, promising that if you are a civil servant and you do your job, you will not be fired for arbitrary reasons.

That guarantee is now hanging by a thread.

We have had two vacancies and only one remaining Board member since January 2017. That means that the Board has not been able to issue any decisions since then for lack of a quorum. MSPB now has a backlog of 1500 appeals awaiting a decision when its working backlog should be about five. Each removal appeal involves an unfortunate human being whose life is dependent on the outcome of the appeal. Each of those appeals also involves the potential for the government to have to pay out back pay, attorney fees, and compensatory damages to successful appellants. That potential indebtedness increases daily for each work day that an appeal is not resolved.

As we’ve written about recently here at FELTG, on November 28, by the vote of a single Senator, the panel of nominees submitted by the White House to become the three new members of MSPB was rejected by the Senate. The result of that vote is that the backlog of appeals at the Board will continue to grow until the Board again has a quorum.

Separately, the term of the current Acting Chairman, the sole remaining Board member, expires on March 1. As of March 2, there will be no Board members at all. There is defensible legal argument circulating within the administration (we are told) that without any Board members, by law MSPB cannot exist as an agency. If that is the case, on March 2, MSPB would have to begin to furlough (or RIF?) all of its 240 employees: judges, psychologists, and attorneys. It is conceivable that after 135 years of merit systems protection, the federal civil service will have no protector at all.

Fortunately, here at FELTG, we’ve figured out a way to fix all of this. We call it Whitaker-ize.

As many of you know, on November 7, President Trump appointed James Whitaker to be the Acting United States Attorney General. That position, as are the Board member positions, is normally filled by an individual nominated by the President and confirmed by the Senate. However, the President acted to appoint Mr. Whitaker without Senate confirmation of his nomination. He did this by invoking the provisions of a somewhat recent law, the Federal Vacancies Reform Act of 1998, 5 U.S.C. § 3345 et seq. That law establishes the procedure for a filling a vacancy in an appointed officer of an executive agency during the time before a permanent replacement is appointed. It bypasses the requirement for Senate confirmation and can cause a vacancy to be filled immediately based solely on the action of the President.

The Act specifies three classes of people who may serve as acting officers:

  1. By default, “the first assistant to the office” becomes the acting officer.
  2. The President may direct a person currently serving in a different Senate-confirmed position to serve as acting officer.
  3. The President can select a senior “officer or employee” of the same executive agency who is equivalent to a GS-15 or above on the federal pay scale, if that employee served in that agency for at least 90 days during the year preceding the vacancy.

Well, if it’s good enough to fill the vacancy of US Attorney General, why would it not be good enough to fill one of the vacant Board member positions? Mr. President, why not Whitaker-ize us a temporary Board member?

Option 1, above, is not relevant at MSPB because no Board member has a “first assistant.” One could argue that the Chief Counsel to a member (the position I held previously) is effectively a “first assistant.” However, there’s no need to make that somewhat tenuous argument because options 2 and 3 are absolutely begging to be implemented:

  • Reassign the current occupant of a different Senate-confirmed position. The Federal Labor Relations Authority, a sister-agency to MSPB, has three Senate-confirmed appointees sitting on it. Two of them always vote together and agree on case decisions while the third member often dissents. The cases that come before FLRA are based on the same law that MSPB interprets, the Civil Service Reform Act of 1978. The Authority members are highly experienced and have deep knowledge of civil service law and how to vote on employment disputes. With the stroke of a pen, the President could reassign the third outlying Authority member to be a temporary Board member, thereby allowing cases on which the current Acting Chairman has already acted to be voted on and issued immediately. That new temporary member would be able to function until March 1 when the current Acting Chairman’s term expires. The backlog could be reduced significantly in that period of time and a possible March 2 shutdown of the agency would be avoided.
  • Appoint a senior “officer or employee” of MSPB who is equivalent to a GS-15 or above. The Board’s staff literally bristles with highly qualified individuals who satisfy this criterion. Every regional office has at least a couple of GS-15 level judges plus an SES chief judge who could vote maybe a million cases a day if given the opportunity. Board headquarters is replete with experienced, talented attorney team leaders and office heads who are GS-15 and above and who already know the code to the rest room door at Board headquarters.

Desperate times call for desperate measures. Our country needs a new Board member NOW (not two new Board members as that will just slow things down). We do not have time for the luxury of vetting and voting. Our career civil service, the very backbone of our government, is sinking. Politics, smolitics. If you know people at the White House, please suggest to them that they recommend one of the above options to the President. Then, with a tweet, he can resolve this impending doom. Act quickly, Mr. President, and the quorum-ed-up Board can get in 75 days of voting before we are again down to one remaining (temporary) member. Hopefully, by then you’ll have a new slate of nominees and the civil service will be saved.

Until … the next time. [email protected]

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