Lisa Rein Reporter covering federal agencies and the management of government in the Trump administration February 12 at 12:22 PM Mark Robbins soon will pack up his belongings from his sixth-floor corner office, ride the elevator to the lobby on M Street in downtown Washington for the last time, and leave behind 240 employees and a federal agency that could be leaderless.
His departure as acting chairman of the Merit Systems Protection Board, which serves as a personnel court for federal employees, raises an existential question: Can the board still live and function with no one at the top?
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 nominees.
(Bill O’Leary/The Washington Post) 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.
[How the Trump era is changing the federal bureaucracy] 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.
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.
Congress passed a special statute last year giving just one member the authority to order agencies to grant relief in cases involving whistleblowers.
Some won rulings from administrative judges in their favor, only to have them languish before the board when the agency appealed.
[Trump takes aim at federal bureaucracy with new executive orders] 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.
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.
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.”
Divided opinion 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.
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.
Experts agree that while other independent agencies have gone without board quorums, none has faced the impending scenario of the merit board.
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.
The personnel office weighs in on some board cases that involve personnel policies across the government.
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.
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