By William Wiley, January 23, 2019

While everybody was focused on the shutdown and the holidays, there was a fascinating, and frankly head-scratching, development involving MSPB Acting Chairman Mark Robbins. On December 21, 2018, OPM’s Acting Director Margaret Weichert announced that Mark Robbins will serve as the new General Counsel for OPM. This in itself was not a shock. Robbins previously served as OPM General Counsel from 2001-2006, and it was expected that he’d return there once his MSPB tenure ended in March. However, Weichert’s announcement coincided with President Trump’s memorandum directing Robbins to serve concurrently as OPM General Counsel and Acting Chairman of the MSPB.

I cannot understand the rationale. Maybe there’s some need within OPM for there to be a Presidentially appointed General Counsel and Robbins was moved in earlier than he would be otherwise. I see no benefit to doing this from what I know historically. Is there a conflict created by holding these two positions?

As we all know, the MSPB has been without a quorum for over two years. With Robbins as the only current member, the Board has been unable to issue any decisions. However, recent news articles have reported that Robbins has been voting on cases. That is, he’s expressing his opinion as to whether the judge’s decision should be affirmed or modified. As a practical matter, that means that on top of each file for each appeal now pending at MSPB, there is at least a signature from Robbins agreeing with the judge or a legal note arguing why the judge’s decision should be modified. He has expressed his opinion as to the proper outcome. If another member were appointed while Robbins was still in office, the new member could vote in agreement with Robbins after considering Robbin’s action on the case, or express disagreement.

It now appears that there will not be a new member to concur or dissent from Robbin’s opinions before his term expires. Therefore, his work has no legal value. However, I seem to remember Robbins expressing in an interview that he hoped his opinions would be of value to the new members when they arrive. If that is correct, then it WOULD be a conflict if he continues to express an opinion in pending appeals. Here’s why:

  1. When MSPB issues a decision, the appellant who doesn’t agree with it can appeal to federal court.
  2. However, if the agency doesn’t agree with the decision, it cannot go directly to court. Instead, it has to go through the GC’s office at OPM. Only if that office concludes that MSPB’s decision has significant government-wide impact can the matter then be referred to the Department of Justice, who files a petition challenging the Board’s decision in federal court.
  3. If Robbins were to a) express an opinion on cases now pending at MSPB, and b) the new members were to be swayed by that opinion after he’s gone, then c) it could be argued that he would be in a position at OPM to decide whether the case could be appealed to federal court.

Here’s a hypothetical: An agency fires an employee for off-duty sexual misconduct. It’s a close call, but the judge concludes that there is a nexus between the off-duty conduct and the government job, maybe because the misconduct occurred in government-supplied housing. The judge upholds the agency’s removal. Robbins reviews the employee’s PFR that challenges the judge’s nexus finding, and concludes the judge was wrong. Robbins drafts a legal note arguing compellingly that this particular type of off-duty conduct does not support a nexus finding. He argues that the Board should set aside the removal.

New Board members read Robbins’s argument, are swayed by his opinion, and issue a decision finding no nexus. The agency wants to appeal the issue to federal court. They now have to go through OPM’s GC for approval. Robbins would be in a position to block the agency’s appeal if he were to conclude that the matter does not have government-wide significance.

Of course, this will not be a concern if Robbins recuses from making these sorts of decisions on behalf of OPM. Or, if the new members decline to consider any of Robbins’ leftover legal notes.

And, my comment here should in no way be taken as the casting of an aspersion toward Chairman Robbins. It is not his character that is an issue, but rather the potential appearance of a conflict created by the duality of the appointment. Sometimes, even good people can be put in bad situations. [email protected]


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