[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]


                    EFFECTS OF VACANCIES AT THE MERIT
                        SYSTEMS PROTECTION BOARD

=======================================================================

                                HEARING

                               BEFORE THE

                 SUBCOMMITTEE ON GOVERNMENT OPERATIONS

                                 OF THE

                         COMMITTEE ON OVERSIGHT
                               AND REFORM

                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED SIXTEENTH CONGRESS

                             FIRST SESSION
                               __________

                           FEBRUARY 28, 2019
                               __________

                           Serial No. 116-04
                               __________

      Printed for the use of the Committee on Oversight and Reform

                  [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
                                    
                  Available on: http://www.govinfo.gov
                    http://www.oversight.house.gov or
                        http://www.docs.house.gov
                        
                              ___________

                    U.S. GOVERNMENT PUBLISHING OFFICE
                    
36-618 PDF                WASHINGTON : 2019                        
                        


                   COMMITTEE ON OVERSIGHT AND REFORM

                 ELIJAH E. CUMMINGS, Maryland, Chairman

Carolyn B. Maloney, New York         Jim Jordan, Ohio, Ranking Minority 
Eleanor Holmes Norton, District of       Member
    Columbia                         Justin Amash, Michigan
Wm. Lacy Clay, Missouri              Paul A. Gosar, Arizona
Stephen F. Lynch, Massachusetts      Virginia Foxx, North Carolina
Jim Cooper, Tennessee                Thomas Massie, Kentucky
Gerald E. Connolly, Virginia         Mark Meadows, North Carolina
Raja Krishnamoorthi, Illinois        Jody B. Hice, Georgia
Jamie Raskin, Maryland               Glenn Grothman, Wisconsin
Harley Rouda, California             James Comer, Kentucky
Katie Hill, California               Michael Cloud, Texas
Debbie Wasserman Schultz, Florida    Bob Gibbs, Ohio
John P. Sarbanes, Maryland           Clay Higgins, Louisiana
Peter Welch, Vermont                 Ralph Norman, South Carolina
Jackie Speier, California            Chip Roy, Texas
Robin L. Kelly, Illinois             Carol D. Miller, West Virginia
Mark DeSaulnier, California          Mark E. Green, Tennessee
Brenda L. Lawrence, Michigan         Kelly Armstrong, North Dakota
Stacey E. Plaskett, Virgin Islands   W. Gregory Steube, Florida
Ro Khanna, California
Jimmy Gomez, California
Alexandria Ocasio-Cortez, New York
Ayanna Pressley, Massachusetts
Rashida Tlaib, Michigan

                     David Rapallo, Staff Director
              Wendy Ginsberg, Subcommittee Staff Director
                          Amy Stratton, Clerk

               Christopher Hixon, Minority Staff Director

                      Contact Number: 202-225-5051
                                 ------                                

                 Subcommittee on Government Operations

                 Gerald E. Connolly, Virginia, Chairman
Eleanor Holmes Norton, District of   Mark Meadows, North Carolina, 
    Columbia,                            Ranking Minority Member
John Sarbanes, Maryland              Thomas Massie, Kentucky
Jackie Speier, California            Jody Hice, Georgia
Brenda Lawrence, Michigan            Glenn Grothman, Wisconsin
Stacey Plaskett, Virgin Islands      James Comer, Kentucky
Ro Khanna, California                Ralph Norman, South Carolina
Stephen Lynch, Massachusetts         W. Steube, Florida
Jamie Raskin, Maryland


                         C  O  N  T  E  N  T  S

                              ----------                              
                                                                   Page
Hearing held on February 28, 2019................................     1

                               Witnesses

Mark Robbins, Acting Chairman, Merit Systems Protection Board
    Oral Statement...............................................     4
Thomas Devine, Legal Director, Government Accountability Project
    Oral Statement...............................................     5
John Palguta, Director of Policy and Evaluation, Merit Systems 
  Protection Board
    Oral Statement...............................................     7
Valerie Brannon, Legislative Attorney
    Oral Statement...............................................     8
John York, Policy Analyst, Heritage Foundation
    Oral Statement...............................................    10

* The opening statement and the prepared statements for the above 
  witnesses are available in the U.S. House of Representatives 
  Repository at:  https://docs.house.gov.

                           INDEX OF DOCUMENTS

                              ----------                              

No additional documents were submitted during this hearing.


 
       EFFECTS OF VACANCIES AT THE MERIT SYSTEMS PROTECTION BOARD

                              ----------                              


                      Thursday, February 28, 2019

                  House of Representatives,
             Subcommittee on Government Operations,
                         Committee on Oversight and Reform,
                                                   Washington, D.C.

    The subcommittee met, pursuant to notice, at 10:02 a.m., in 
room 2154, Rayburn House Office Building, Hon. Gerald E. 
Connolly (chairman of the subcommittee) presiding.
    Present: Representatives Connolly, Sarbanes, Lawrence, 
Khanna, Lynch, Raskin, Meadows, Hice, Grothman, Comer, and 
Steube.
    Mr. Connolly. The committee will come to order.
    Without objection, the chair is authorized to declare a 
recess of the committee at any time.
    Without objection, members of the full committee not on 
this subcommittee are authorized to participate in today's 
hearing.
    The hearing is entitled ``Effects of Vacancies at the Merit 
Systems Protection Board.''
    Now I'm going to give my opening statement, and then I will 
recognize the ranking member for his opening statement.
    Two years into the Trump administration, the President has 
still not filled half of the top posts of the Federal 
Government.
    According to the Partnership for Public Service, of the 705 
key executive branch positions requiring Senate confirmation, 
only 431 are currently filled. More than 40 percent of Senate-
confirmed positions at the Departments of the Interior, 
Justice, and Labor remain unfilled. President Trump has not 
even nominated individuals for 149 top posts in the Federal 
Government, and the Republican Senate has not acted on 126 
nominations awaiting confirmation.
    Keeping vacancies open at the top of the key Federal 
agencies could be exploited as an expedient way to circumvent 
Congress' advice and consent role. In fact, President Trump 
recently said he's not in a rush to name permanent members to 
his Cabinet, stating, and I quote, ``Well, I'm in no hurry. I 
have `actings' and my actings are doing really great. I sort of 
like `acting.' It gives me more flexibility.''
    However, a failure to adequately staff the Federal 
Government can cause real harm.
    One example of an agency where vacancies impair the mission 
of the agency is before us today, the Merit Systems Protection 
Board. It's a small agency, but a critical one that was 
established by Congress to protect merit principles in the 
civil service and to help ensure nonpartisan Federal work force 
compliance.
    Since January 7, 2017, the agency has been hobbled by two 
vacancies on its three-member Board, leaving it without a 
quorum. This is the longest absence of a quorum in the history 
of the agency. And unlike other agencies, the vacant seats at 
the MSPB cannot simply be filled by an individual in an acting 
capacity.
    The sole remaining member of MSPB, like the last of the 
Mohicans, is with us today, Mr. Robbins. He was confirmed by 
the Senate in 2012 for a term to expire in 2018. He continues 
to serve in a one-year carryover term which will expire at the 
end of today--today.
    Once his term expires--today--the MSPB will be left without 
any Board members. If that agency is left without any principal 
officers, it's unclear which functions employees of the agency 
can continue and which would need to be suspended.
    It is clear, however, that whistleblowers will lose, 
because the Office of Special Counsel will no longer be able to 
obtain a stay of retaliatory actions against them, which falls 
under the rubric of the MSPB.
    There are two ways to avert a memberless Board. Either the 
Senate could confirm nominees, which Mr. Hice and I would 
certainly call on them to do, or Congress could pass a 
temporary extension of Mr. Robbins' term, which is what we did 
the other day on the floor.
    Unfortunately, the Senate leadership opted not to allow the 
full Senate to confirm the Republican and Democratic nominees 
who have cleared the Senate Homeland Security and Governmental 
Affairs Committee until the President nominates a third 
individual.
    But earlier this week, as I said, the House passed H.R. 
1235, a bill offered by Chairman Cummings and myself, to 
temporarily extend Mr. Robbins' term for one more year. 
Unfortunately, the Senate failed to act on that bill and has 
not even allowed debate.
    As a result, at 5 p.m. today we will enter uncharted 
territory. The Board will be memberless for the first time in 
its 40-year history.
    The last two years of vacancies at the MSPB have also been 
unprecedented, and they've impaired the agency's mission. The 
absence of a quorum has prevented the Board from hearing final 
appeals of adverse agency actions, such as terminations, 
suspensions in excess of 14 days, reductions in grade or pay, 
reductions in force actions, denials of restoration of 
reemployment rights, OPM determination in retirement cases, and 
Hatch Act violations, among many others.
    The MSPB has also been unable to hear appeals of wrongful 
terminations and retaliations against whistleblowers, a prime 
concern of this committee. That means that MSPB is unable to 
enforce the law that this committee, and Congress, passed to 
protect the brave individuals who alert us to waste, fraud, and 
abuse.
    According to Tom Devine, the legal director of the 
nonprofit Government Accountability Project and one of our 
witnesses today, the current situation, quote, ``is disastrous 
for whistleblowers.''
    The lack of a quorum has also resulted in a backlog of 
1,975 cases, according to the documents provided to the 
subcommittee. Acting Chairman Robbins has reportedly said that 
eliminating that backlog will take, at a minimum, three years 
to process. That is a clear example of justice delayed being 
justice denied.
    The vacancies of principal officers at the agency are 
untenable. Federal employees deserve better. They deserve to 
have their appeals heard by the Board. Employees of the MSPB 
deserve to work at a fully functioning agency with leadership 
in place. And taxpayers deserve to have their government 
capable of carrying out the Nation's laws. President Trump's 
vacancies stand in the way of these missions.
    I look forward to hearing a careful look at the issues 
today and drawing attention to the importance of a fully 
operational Merit Systems Protection Board.
    With that, I call upon the ranking member for his opening 
statement.
    Mr. Hice. I thank my friend, Chairman Connolly. And the 
real ranking member, Mr. Meadows, just walked in. He was 
running late with another commitment and asked if I would 
provide opening remarks, which I'm more than happy to do. And I 
want to thank each of the witnesses for being here as well 
today.
    This is an issue that the chairman and I, and many up here, 
are deeply concerned about. In fact, we just had a productive 
debate on this issue on the floor this week. And we're 
concerned about the future of the Merit Systems Protection 
Board. I know, Chairman, you know that I am very committed to 
ensuring that we have a successful operation at MSPB.
    In fact, during the 115th Congress, the Oversight Committee 
conducted numerous hearings and even passed the MSPB 
reauthorization bill, which would have made some critical 
reforms to MSPB. The responsibilities there primarily include: 
to adjudicate appeals of Federal personnel actions and to also 
provide protection for whistleblowers.
    Congress has a duty, I believe, to ensure that MSPB 
functions effectively and administers their rulings fairly. To 
be effective and to be able to make decisions properly, MSPB 
needs at least two members to make a quorum. As we are all 
aware of today, that has not been the case now for two years. 
And without a quorum, the backlog has gotten quite dramatic to 
now nearly 2,000 cases, and that's very disturbing.
    The only remaining member, again, as the chairman 
highlighted a moment ago, Mark Robbins, is term limited.
    We want to welcome you and thank you for your service and 
for being here today.
    But starting tomorrow, MSPB will be without a single Board 
member.
    Currently there are two MSPB nominees awaiting 
consideration in the Senate. Looking ahead, I hope the 
President will go ahead and nominate the third Board member. 
And as we were talking about a few moments ago, we desperately 
need the Senate to quickly confirm these nominations. We need 
the third one as quickly as possible.
    In December the President asked Mr. Robbins to serve as the 
general counsel at the Office of Personnel Management. Over the 
past 10 weeks, he has been serving in both roles at OPM and 
MSPB.
    Mr. Robbins, you have worked tirelessly, and we deeply 
appreciate the work that you have given. But we know that it's 
time that you're now moving on. But your sense of duty to the 
MSPB is greatly appreciated, and we do want to express that 
publicly to you. Your commitment to Federal workers and the 
Federal workforce is greatly appreciated. Your willingness now 
to serve the President and our country in another capacity also 
is appreciated.
    But in closing, I hope that we can work together to provide 
certainty to Federal workers and whistleblowers by making the 
MSPB operational once again.
    Again, Chairman, I thank you. I yield back.
    Mr. Connolly. I thank the ranking member.
    Are there any other members who wish to make an opening 
statement for one minute?
    Hearing and seeing none, today we welcome our panelists. We 
have with us Mark Robbins, the acting chairman of the Merit 
Systems Protection Board; Thomas Devine, the legal director of 
the Government Accountability Project; John Palguta, former 
director of policy and evaluation at the agency, MSPB; Valerie 
Brannon, legislative attorney for the American Law Division at 
the congressional Research Service; and John York, policy 
analyst for the Heritage Foundation.
    Welcome, all of you.
    If you would rise. We generally swear in our witnesses. And 
if you'd raise your right hand.
    Do you swear to affirm that the testimony you're about to 
give is the truth, the whole truth, and nothing but the truth, 
so help you God?
    Let the record show that all of our witnesses answered in 
the affirmative.
    Thank you.
    Witnesses have five minutes if they want it. We are running 
against the clock, and we want to try to get this in, because 
once we take votes, coming back is problematic. Some of you 
know that. Although Mr. Meadows will be, I know, here no matter 
what.
    So if you don't need the full five minutes to summarize 
your testimony, which we have in full, that would be great. But 
you do have five minutes if you want it.
    Mr. Robbins.

STATEMENT OF MARK A. ROBBINS, ACTING CHAIRMAN, MERIT SYSTEMS 
PROTECTION BOARD

    Mr. Robbins. Chairman Connolly, Ranking Member Meadows, and 
members of the committee, thank you for inviting me here to 
testify today. It's always an honor for me to publicly 
represent the men and women of the U.S. Merit Systems 
Protection Board. And sadly, as you've noted, this will be the 
last time I have that honor. My term ends at midnight tonight.
    On a personal note, I'd like to thank you, Mr. Chairman and 
Congressman Hice, for your kind comments both today and on the 
floor Monday. It's greatly appreciated, and you've made my 
father proud. So thank you for that.
    I also want to acknowledge the longstanding interest of 
Ranking Member Meadows. My staff fondly recalls your visit back 
in April 2016, I believe it was.
    And I'd like to invite you, Mr. Chairman, or any other 
member to visit the MSPB at your convenience. We can do a 
pretty good dog and pony show.
    I also want to acknowledge my longstanding association with 
fellow panelists John Palguta and Tom Devine. I greatly respect 
their career-long dedication to the professional, efficient, 
and well-managed civil service. And I'd like to add I'm proud 
of my seven-year tenure at the Board and its ability to 
continue functioning at almost full capacity since we lost our 
quorum two years ago.
    I'm fond of quoting Theodore Roosevelt, and there's one 
quote in particular that's very appropriate to the Board and 
its operations of late, and it is: ``Do what you can, with what 
you have, where you are.'' That's what we've done.
    With that, I look forward to addressing any issues of 
interest or concern by the committee.
    Mr. Connolly. Mr. Robbins, you're an exemplar. Thank you so 
much.
    Mr. Devine.

STATEMENT OF THOMAS M. DEVINE, LEGAL DIRECTOR, GOVERNMENT 
ACCOUNTABILITY PROJECT

    Mr. Devine. Thank you. I serve as legal director of the 
Government Accountability Project, but this testimony is also 
for six leading members of the nonpartisan, trans-ideological 
Make It Safe Coalition dedicated to whistleblower protection.
    No institution is more important for accountable government 
than the MSPB. But since January 2017, the Board has been 
dysfunctional. At a minimum, it's in danger of its 
administrative appeals function becoming dormant.
    Board vacancies already have created a crisis. While 
Chairman Robbins has performed beyond the call of duty as a 
public servant under impossible circumstances, they remain 
impossible.
    The first consequence has been delays. Without a quorum for 
two years, the Board has been unable to issue any final 
decisions, and the resulting current nearly 2,000-case backlog 
exacerbates already inexcusable delays before January 2017. 
Whistleblower Kim Farrington's nine-year nightmare is 
summarized in written testimony. We can't allow this to get 
worse.
    Second, Board vacancies have created a crisis of 
accountability for administrative judges. AJs are the soul of 
the merit system because they preside over administrative due 
process hearings that are Federal employees' only day in court 
and a major duty of the Board is to provide guidance on proper 
interpretation of employee rights to them. The prior Board was 
effective at providing that support.
    But since the vacuum of appellant review, the track record 
for whistleblower rights has dropped sharply. The Board 
reported that for Fiscal Year 2016 whistleblowers won about 7 
percent of decisions on the merits.
    To compare, since we haven't had appellant review, I 
researched four months of Board decisions by AJs, the last four 
months and December 2017. The track record was one in 45, 2.2 
percent, over three times lower than with active Board 
oversight.
    The decisions also have become more hostile to the 
Whistleblower Protection Act's statutory boundaries. They've 
been echoing Federal Circuit Court of Appeals rulings that 
forced Congress to pass the All Circuits Review Act.
    My written testimony provides seven examples of hostile 
judicial activism in those four months.
    Most disturbing is the clear and convincing evidence 
standard to independently justify acts of partial retaliation. 
Despite repeated congressional and Federal Circuit strong 
mandates that this is an extremely high bar that should be 
respected, AJs ruled against whistleblowers on the clear and 
convincing evidence standard in 15 out of 16 cases. In the 
absence of normal appellate review, they have not been 
respecting the legislative mandate.
    Like the partial government shutdown, an MSPB shutdown 
would have destructive consequences. Even continued AJ opinions 
without Board members would make a currently dysfunctional 
system disastrous.
    First, there's questions whether members of the Board could 
operate under the Constitution's Appointments Clause. If they 
can't, that would end enforcement of the Civil Service Reform 
Act and the Whistleblower Protection Act, period.
    At a minimum, justice will be further delayed and 
settlements reduced. Currently, agencies and whistleblowers 
settle about 10 to 25 percent of appeals. A shutdown would 
eliminate all agency incentive to settle cases because they'd 
be winning until the Board was there to stop them again.
    Third, even if AJs can continue to make decisions 
appealable to the Circuit Courts, the quality of the appellate 
review will deteriorate because those courts inherently can't 
have the accumulated expertise that the Board has from doing 
this work constantly full-time.
    And most significant, a Board shutdown would erase 
enforcement capacity for the Office of Special Counsel. 
Immediately it would cancel emergency legislation to seek stays 
from one Board member, because there wouldn't be any.
    Stays are indispensable. They freeze retaliation that 
otherwise would be long-term faits accompli and they provide 
leverage to enforce corrective action settlements in disputes 
that agencies otherwise would drag out indefinitely. The Board 
would be unavailable to enforce OSC corrective action 
recommendations when an agency balks.
    We are confident that Special Counsel Kerner will 
creatively seek to minimize the damage. But scrambling is no 
substitute for statutory authority. Depriving the OSC of Board 
backup for enforcement would dilute the Merit System's most 
effective resource to an advisory body.
    Mr. Chairman, we are just talking today about crisis 
response. My testimony has long-term structural suggestions.
    Mr. Connolly. Wonderful. Thank you so much.
    Mr. Palguta.
    Am I pronouncing your name correctly?

STATEMENT OF JOHN M. PALGUTA, FORMER DIRECTOR OF POLICY AND 
EVALUATION, MERIT SYSTEMS PROTECTION BOARD

    Mr. Palguta. You are. Thank you very much.
    Chairman Connolly, Ranking Member Meadows, members of the 
subcommittee, thank you for the opportunity to appear before 
you today.
    Mr. Connolly. And, Mr. Palguta, you are a constituent of 
mine, are you not? Did you say you were a constituent of mine?
    Mr. Palguta. I am, indeed.
    Mr. Connolly. In Vienna? One of the most brilliant people 
ever to come before this subcommittee.
    Mr. Palguta. Thank you very much, and let the record show.
    So I am John Palguta, and from 1979 to 2001 I had the 
privilege of working for the Merit Systems Protection Board. 
For the last 4-1/2 years of that tenure I was the director of 
the Office of Policy and Evaluation and a career member of the 
Federal Senior Executive Service.
    First of all, I want to commend the subcommittee for 
calling this hearing to focus on a relatively small and 
somewhat obscure Federal agency but one with a 
disproportionately large role to play in ensuring the presence 
of a strong, vibrant Federal work force.
    I chose to spend 22 years of my career at MSPB because I 
believe in the importance of its mission. Congress created the 
Board under the Civil Service Reform Act of 1978 as part of a 
carefully thought out and hotly debated set of checks and 
balances within the executive branch.
    There was concern at the time of that 1978 act that the 
replacement of the bipartisan U.S. Civil Service Commission 
with a politically responsive Office of Personnel Management, 
that it posed an existential threat to a merit-based, 
politically neutral career Federal work force.
    Congress' answer to that concern was the creation of MSPB 
with statutory oversight over OPM, a charter to review and 
report on the health of the Federal merit system, and the 
responsibility to hear and adjudicate appeals from Federal 
employees who believed they were being disciplined or removed 
for non-meritorious or partisan political reasons. For the last 
38 of 40 years, that has worked very well.
    I've been asked by the subcommittee to share my views on 
three issues. I'll do that very quickly.
    One, what is the impact of the MSPB given that two of the 
three Board members have been vacant for two years. We've 
already heard about the devastating impact on the backlog of 
petition for reviews that remain undecided.
    In addition, no reports from the Board's Merit System 
studies and OPM oversight function have been issued in the last 
two years. In the event there are no Board members at the end 
of today--or after today--it will not be possible, as Mr. 
Devine has already said, to stay an adverse personnel action 
being taken as reprisal for a whistleblower.
    Then one other thing. Over the last two years the Board has 
been unable to amend formally its own operating procedures to 
address changes in the law, such as those for appeals from 
employees at Veterans Affairs.
    There was also the question about the independence of the 
MSPB given that Mr. Robbins is dual-hatted. Suffice it to say, 
and I'm confident that Mark Robbins has fully recused himself 
from any decisions that would create a conflict of interest, 
but certainly there is an appearance of a conflict.
    So going forward, I am also confident that, in their 
wildest dreams, the writers of the Civil Service Reform Act 
never contemplated that the chairman of MSPB would serve as the 
general counsel of the very agency for which they have 
oversight.
    Then the last question had to do with the continuing of 
operations of MSPB as of midnight tonight. We have other 
experts who will address that. But I will just say that without 
any Board members, the dire situation at MSPB will simply 
become more dire.
    So in conclusion, it's clearly possible that it is clearly 
in the public interest to have a fully functional MSPB. Best 
possible course of action is for the Senate to confirm three 
qualified nominees. Absent a third nominee right now, I fully 
agree that the two nominees who are awaiting confirmation 
should be forwarded to the full Senate without delay.
    And if tomorrow dawns with all Board positions vacant, then 
every effort needs to be made to determine how best to enable 
this vitally important agency to continue operating at whatever 
level is possible under the law.
    So thank you, and I will be happy to answer any questions.
    Mr. Connolly. Thank you, Mr. Palguta, for your 
perspicacious and brilliant testimony.
    Ms. Brannon.

STATEMENT OF VALERIE BRANNON, LEGISLATIVE ATTORNEY, AMERICAN 
LAW DIVISION, CONGRESSIONAL RESEARCH SERVICE

    Ms. Brannon. Chairman Connolly, Ranking Member Meadows, and 
members of the subcommittee, my name is Valerie Brannon. I'm a 
legislative attorney with the American Law Division of the 
congressional Research Service. Thank you for inviting me to 
testify today on behalf of CRS regarding the continuing 
operations of the MSPB if it has no sitting Board members.
    In brief, the ability of the MSPB to function with a vacant 
Board will likely turn on whether it has delegated authority to 
agency employees and whether those delegations are legally 
permissible.
    There are at least three types of possible legal 
limitations on these delegations--common law, statutory, and 
constitutional--and I'll be speaking somewhat broadly about 
these legal limits.
    So, first, any agency delegations of authority may be 
tested again common law principles of agency law. So, for 
example, one general rule is that any person who makes a 
delegation must have the authority themselves to take the 
action that they're delegating.
    But when we talk about Federal agencies, a lot of these 
common law principles have been replaced by statutory and 
regulatory regimes. So when you evaluate Federal agency 
delegations, it's important to look to those statutes and 
regulations.
    So Congress delegates regulatory authority to agencies in 
statute, and agencies may then further delegate that authority 
to subordinates. Courts will generally assume that agencies are 
authorized to make these sorts of subdelegation. But Congress 
can pass statutes that limit subdelegation.
    So turning to the MSPB, there is a statutory provision that 
broadly authorizes the Board to delegate the performance of any 
of its administrative functions to any MSPB employee. Other 
statutes grant certain adjudicative powers to specific MSPB 
officials, which may mean that these adjudicative functions may 
be delegated only to the named officials. The MSPB has, in 
fact, made a number of delegations pursuant to these statutory 
authorizations.
    So assuming that these delegations were valid at the time 
they were made, if the Board becomes completely vacant, then a 
court would likely conclude that these delegations continue in 
effect.
    Outside the context of multi-member boards, courts have 
generally held the delegations of authority do survive the 
resignation of the official who made the delegations. And in 
the context of multi-member commissions, at least one Federal 
court of appeals has held that the commission's delegation of 
specific authority to the agency's executive director remained 
valid even after the commission became completely vacant want.
    However, the cases do suggest that courts will probably 
look to the scope of any specific delegation and may be more 
likely to uphold more limited delegations.
    The third and final legal limitation on agency delegations 
that I'll discuss comes from the Appointments Clause of the 
Constitution.
    So the Appointments Clause generally divides government 
officers into three categories: principal officers, inferior 
officers, and employees. The Constitution says that officers 
have to be appointed through constitutionally prescribed 
procedures. Generally, this is the advice and consent process. 
But Congress may vest the appointment of inferior officers as 
opposed to principal officers in the President or in agency 
heads.
    The Constitution doesn't define who is an officer as 
opposed to an employee, but the Supreme Court has said that an 
officer is any official who exercises significant authority in 
the form of continuing and permanent duties.
    So if an MSPB official is responsible for continuing duties 
that represent significant authority, then that official has to 
be appointed in accordance with those constitutional 
procedures. Conversely, if an employee was not appointed in 
accordance with those procedures, then they may not exercise 
significant authority.
    These Appointments Clause requirements apply to MSPB 
officials regardless of whether or not the Board is vacant. But 
as a factual matter, it's possible that Board vacancies would 
cause more significant duties to be delegated down, which may 
raise more significant Appointments Clause questions.
    But ultimately the constitutionality of the authority 
that's exercised by any MSPB official will depend really 
heavily on the precise scope of their duties. So it's difficult 
to say in the abstract whether there are any constitutional 
violations.
    Thank you. And I'll be happy to answer any questions at the 
appropriate time.
    Mr. Connolly. Thank you so much, Ms. Brannon.
    Mr. York.

STATEMENT OF JOHN YORK, (MINORITY WITNESS), POLICY ANALYST, 
HERITAGE FOUNDATION

    Mr. York. I appreciate the invitation to be here today. My 
name is John York, and I'm a policy analyst at the Heritage 
Foundation. I also have experience managing civil service 
employees. As a Coast Guard officer, I was the direct 
supervisor for 20 truly exceptional civil servants.
    Before I begin, the views I express in this testimony are 
my own. They should not be construed as representing the 
official position of the Heritage Foundation.
    I think I'm going to sound like a little bit of a broken 
record today, because I agree with almost everything that's 
been said. But I think in repeating what we've already heard, 
sort of get a sense that this isn't a liberal or conservative 
issue. The good functioning of the MSPB is a good government 
issue.
    For anyone interested, as I am, in the just and effective 
functioning of our Federal Government, the vacancies at the 
MSPB should be very troubling. The vacancies have left the 
Board without a quorum since January 2017, as we've heard 
multiple times.
    The Board, as a result, has been unable to issue final 
decisions in adverse action appeals or review OPM regulations. 
It can issue no official reports. It can order stays only as 
requested by the Office of Special Counsel. The backlog of 
appeals waiting for the Board's review is now nearly 2,000.
    For some, this is justice denied. For most, it is 
punishment delayed. After all, the MSPB finds in favor of 
agencies a great majority of the time. If this pattern holds, 
many employees who will eventually be drummed out of the civil 
service are today receiving interim relief while they either to 
work or languish on administrative leave. All the while their 
agencies cannot advertise an opening nor begin the long process 
of hiring a replacement.
    A smaller but still sizable number of Federal employees who 
cannot afford a legal battle wait for their names to be 
cleared, their pay to be restored, and their careers to resume.
    Responsibility for the MSPB's incapacity rests primarily on 
the Senate. President Trump has nominated two qualified 
attorneys who await confirmation. The Senate's unwillingness to 
fulfill its constitutional obligation to provide advice and 
consent regarding the President's nominees is an endemic and 
governmentwide issue. There are currently 130 vacancies in the 
judiciary and 300 executive branch nominees awaiting 
confirmation.
    Had the Senate honored its obligation to provide advice and 
consent, we would not be here today discussing the potential 
conflicts of interest that result from the only remaining Board 
member concurrently serving as the general counsel of the 
Office of Personnel Management.
    But regardless who is to blame, one individual 
simultaneously fulfilling both these roles does present several 
potential conflicts of interest, which I note in my written 
testimony.
    Troubling as these potential conflicts of interest are, and 
none of them have been realized, the entire time Mark Robbins 
has both at MSPB and OPM the MSPB has been without quorum. Thus 
Robbins has been unable to discharge those duties that would 
bring these conflicts of interest to a head.
    Robbins' very imminent departure from the MSPB creates 
additional concerns, however. Not only will Mark Robbins' good 
work over the last several years be voided, but the complete 
vacancy of the Board raises constitutional questions, which 
you've just heard about.
    Can the MSPB continue to function with an acting agency 
head who has received no confirmation from the Senate? While 
I'm not a lawyer, and I might be getting out of my skis a 
little bit here, you can correct me if I'm wrong, I think the 
answer is yes. An acting MSPB agency head fulfilling only those 
very limited duties outlined in the continuity of operations 
plan that MSPB has published arguably does not possess 
significant authority. In fact, if the largely administrative 
functions the acting head will wield constitute significant 
authority, there should be a significantly higher number of PAS 
positions in the Plum Book, I'd argue.
    Similarly, a caretaker agency head who is obligated or 
expected to step down immediately upon appointment of a Senate-
confirmed Board member does not hold a continuing position.
    To conclude, the crisis at the MSPB should occasion a 
broader conversation about the status of our civil service and 
the adverse action process. According to the most recent 
Federal Employee Viewpoint Survey, just 32 percent of Federal 
employees said they believe their agencies take steps to deal 
with a poor performer who cannot or will not improve.
    Not only does the American public deserve better from its 
government, but good civil servants deserve better from their 
managers.
    Thank you very much.
    Mr. Connolly. Thank you, Mr. York. Particularly, I thank 
your observation. This is not a Republican or Democratic issue. 
This is a good government issue. And hopefully all of us can 
try to rally around that and figure out a solution.
    The chair now recognizes for five minutes of questioning 
the gentleman from California, Mr. Khanna.
    Mr. Khanna. Thank you, Representative Connolly, for your 
leadership and bringing this attention to the American people.
    I want to focus my questioning on whistleblowers. I know, 
Mr. Devine, you've done tremendous work on representing many 
whistleblowers and also helping craft many laws about 
whistleblowers.
    Mr. Devine, how does a fully functioning Board, when all 
three members are appointed, protect whistleblowers?
    Mr. Devine. Well, sir, it's the enforcement authority, 
monopoly enforcement authority, for nearly all the Merit System 
rights in the Civil Service Reform Act, whether it's temporary 
relief, final relief, sanctions or accountability for 
violations of the act. All we've got is the Merit Systems 
Protection Board. And we think that's unfortunate.
    Federal employees are the only whistleblowers, significant 
portion of the labor force in our country, where whistleblowers 
can't go to court and enforce their rights to jury trials if 
they can't get timely administrative relief. That's been the 
case in every corporate whistleblower law since 2002.
    The Board is indispensable, but it shouldn't be monopoly 
indispensable. We should have the kind of balance that 
corporate whistleblowers are entitled to.
    Mr. Khanna. How many Board members are needed to constitute 
a quorum?
    Mr. Devine. I'm sorry, sir?
    Mr. Khanna. On the Merit--how many Board members are 
needed?
    Mr. Devine. Oh, two.
    Mr. Khanna. Two. And we obviously haven't had that since 
the Trump administration.
    Is it normal for a President to come in and wait a year 
when there's such openings and not appoint someone?
    Mr. Devine. Sir, from every perspective, this has been 
unprecedented. I've been following these rights for 40 years, 
and nothing like this has happened before, either in the Senate 
or with the Presidency.
    Mr. Khanna. Is there any panelist who thinks this is 
normal? I mean, for example, would Nixon or Reagan or Bush just 
say, ``Oh, I don't know what the Merit Board System is. Who 
cares? Let's not appoint someone.''
    Mr. York. I don't think it's normal. But I also think we 
shouldn't ignore the Senate's role in this. While it's true 
that Trump has been making appointments slower than normal, 
it's also true that the Senate has a longer backlog than 
normal. So both of things are unusual.
    Mr. Khanna. Sure. But the Senate can't appoint them. I 
mean, my understanding is the President didn't send a name over 
for over a year. Has any other President waited that long?
    Mr. Robbins. Congressman, if I could address that question.
    Mr. Khanna. Yes.
    Mr. Robbins. I have said in public many times that the 
situation the Board is presently in is the old Lemony Snicket's 
Series of Unfortunate Events. We lost the vice chairman about 
four years ago. And the President, President Obama's nominee, 
was not passed by the Senate. So we started this administration 
with the term of the then chair, Susan Grundmann, getting ready 
to expire.
    The Board was teed up along with the other Title 5 
agencies, the Office of Special Counsel, the Office of 
Personnel Management, the Federal Labor Relations Authority, 
and the Office of Government Ethics. And we had, the 
administration had nominees identified. A couple fell out 
during the process for reasons I'm not familiar with. But I am 
familiar with the process itself, because the Board itself has 
a role in clearing candidates before they're formally nominated 
to the Senate.
    So if you look at the FLRA and the Office of Special 
Counsel and the Office of Government Ethics, their people moved 
almost as a group and were confirmed relatively quickly, but it 
still took six to eight to nine months into the administration.
    I think any administration would have focused naturally on 
the bigger departments and agencies, the Cabinet level. Smaller 
agencies usually come second tier when the focus of nominations 
comes up.
    So as I was sitting there at the Board at the beginning of 
this administration, I didn't anticipate we would have a quorum 
likely until the summer of 2017. That probably would have been 
the case had earlier-identified potential candidates not fallen 
out.
    There are a lot of reasons we are where we are now. I agree 
that, at this point, the Senate could solve this problem 
immediately and hasn't.
    Mr. Khanna. I appreciate that.
    I see my time is about to expire.
    Mr. Connolly. I thank the gentleman.
    Just an observation. I think Mr. York is right and Mr. 
Robbins is right. Yes, the President could do a better job in 
getting these nominations to the Senate. But the Senate has 
decided on its own, as Mr. Hice and I were talking, God knoweth 
why, that it's not going to act until there's a third nominee. 
Well, right now we've got a crisis. They need to act. They've 
got several choices in front of them and have chosen to ignore 
all of them.
    I think it was Sam Rayburn who once said, looking at 
politics, he said the Republicans are the opposition, but the 
U.S. Senate is the enemy.
    At any rate, I call upon the distinguished gentleman from 
Georgia, Mr. Hice, for his five minutes.
    Mr. Hice. Thank you, Mr. Chairman.
    And while we're talking about the Senate, I would totally 
agree with that. Quite frankly, I'm not sure at this point if 
the Senate could even pass a kidney stone. Perhaps they could, 
but we'd need to get something out of the Senate for sure.
    This is a good government issue, and sometimes I think we 
legislators are guilty of assuming we have all the answers, 
which we absolutely do not. I think there's great wisdom in 
trying to get information from those who have boots on the 
ground, so to speak.
    And, Mr. Robbins, you have a lot of experience over the 
last several years, probably more than you care to have over 
the last couple of years. But from your perspective, I would be 
interested to know what kind of improvements or modifications 
do you think need to take place on our end of things that would 
help MSPB function more efficiently.
    Mr. Robbins. Thank you, Congressman.
    This committee in the last Congress actually held a hearing 
on our reauthorization. The Board has not been reauthorized 
since 2002. And included in that effort were a series of 
legislative fixes to a number of issues that I believed could 
bring efficiency to the process. I would refer back to them, I 
don't have my notes with me, on what those were.
    Our process, the process for the Merit Systems Protection 
Board, is the most efficient of the Title 5 processes. If you 
take a look at organizations like the EEOC or the grievance 
process, if you could do a schematic chart of the various 
options, you've got EEOC, MSPB, collective bargaining 
agreements, the new individual rights of action for 
whistleblowers.
    To date, the process of the MSPB going through our regional 
level where the administrative judges hear cases and issue 
initial decisions and then up to the full Board for the 
petitions for review, the appeals of those individual 
decisions, were good. We process those cases.
    I would--and I know this is controversial--I would like to 
see an effort to give our judges summary judgment authority 
similar to what EEOC AJs have. I would like to see a very 
small, nominal fee for filing with the Board, because I believe 
that would separate out meritless cases from real cases that 
deserve attention.
    I use as an example the 33,000 furlough cases we had in the 
summer of 2013. We usually get about 6,000 or 7,000 cases a 
year, and in the course of two months we received 33,000 
appeals because of the sequestration furloughs back then.
    Those cases had to be processed. And I believe that had 
there been even a $25 filing fee, most of those--you know, 
someone would have said, ``Do I''--they were angry. The 
employees were angry. And the easiest thing to do was file a 
grievance with us.
    But had there been a nominal fee, I think many people would 
have found another avenue to express their frustration. It took 
us the better part of three years to process those 33,000 cases 
and other priorities had to take a back seat.
    Mr. Hice. Well, I thank you for that. It affirms to me that 
we're kind of barking up the same tree on some of the things 
we're trying to accomplish.
    Mr. York, you brought up something in the past that I found 
interesting with the jurisdictional overlap between some of 
these. Could you kind of explain how that is problematic and 
what needs to take place to smooth out that whole thing?
    Mr. York. Yes. I've said multiple times, and I believe 
another panelist has agreed, at some time that we should have a 
single forum for appeals.
    There are jurisdictional overlaps between the FLRA and MSPB 
on some occasions. EEOC and MSPB more commonly. And that does 
slow down the process. It's not the way ordinary adjudicative 
processes go, I mean.
    Mr. Hice. So it slows it down because it goes through all 
three?
    Mr. York. In some cases. One can appeal an EEOC decision to 
the MSPB or even an FLRA adjudication to the MSPB on occasion. 
Then, of course, the Office of Special Counsel has a role in 
whistleblower cases.
    But having a single forum would, I think, expedite without 
changing the substantive defense.
    Mr. Hice. What would that look like? I mean, what would be 
the single----
    Mr. York. It would look very much like what we had before 
the Civil Service Reform Act. Before the Civil Service Reform 
Act there was one adjudicative body that would hear all 
appeals, no matter what the subject matter, from Federal 
employees.
    Mr. Hice. Okay. And when did that change?
    Mr. York. 1978, I think.
    Mr. Hice. Okay. All right.
    Thank you. Mr. Chairman, I yield.
    Mr. Connolly. Thank you. Thank you, Mr. Hice.
    Let me just also say, I would hope that out of this 
hearing, and maybe there will be subsequent hearings, we will 
produce some legislation--it's got to be bipartisan--to 
reauthorize the Board, but also to fix the immediate problem. 
That may be two bills. That may be one. But we've got to work 
together to find this problem.
    I don't know that we can solve the problem of kidney stones 
passing in the other body, but we can do our job.
    I call upon the distinguished gentleman from Maryland, Mr. 
Raskin, for his five minutes.
    Mr. Raskin. Thank you very much, Mr. Chairman.
    Mr. Robbins, I want to thank you for your service on the 
Merit Systems Protection Board. It's not been easy being the 
only member on the Board for I think it's more than two years 
now.
    In your testimony, you say: ``Tomorrow the Board may face a 
condition unprecedented in its 40-year history. All three Board 
seats will become vacant when my term expires.'' Now we're 
waiting for the Senate to act either by confirming nominees or 
taking up legislation that we passed in the House to extend 
your term for another year.
    If the Senate fails to act and your term expires Friday, 
what happens to MSPB? Would the agency have to shut down all of 
its operations?
    Mr. Robbins. Thank you, Congressman.
    I don't believe so. I have given my staff instructions that 
as of midnight tonight, they are to, in the words of that old 
English war poster, ``keep calm and carry on,'' until an 
authority of competent jurisdiction tells them otherwise.
    I think the analysis of my fellow panelists is correct. We 
have delegations in place that will allow at least the 
administrative judges at the regional level--which, by the way, 
is where 80 percent of our caseload is resolved--to continue to 
operate.
    Like all other Federal agencies, we have a continuity of 
operations plan that is required by a Bush 43 era executive 
order, which was to anticipate literally decapitation. What if 
an agency loses all of its Article II officers? What happens in 
order to keeps the lights on?
    Mr. Raskin. Who becomes the head when you leave, when 
you're decapitated?
    Mr. Robbins. So under our COOP plan, the primary, the first 
two people to take over the administrative functions--now, they 
couldn't exercise the adjudication or studies functions of the 
Board, but they could administer the agency--would be first the 
executive director and then the general counsel, both of whom 
are noncareer senior executives.
    But an acting individual in either of those positions can't 
assume responsibility under COOP. And right now our executive 
director is in an acting capacity. So as of tomorrow, our 
general counsel will be the administrative and executive head 
of the agency.
    Mr. Raskin. All right. So you view the executive and 
administrative functions of the Board as safe during this 
period?
    Mr. Robbins. Yes, sir.
    Mr. Raskin. Okay.
    Let's see. Would the administrative judges and contract 
administrative law judges still be able to try cases and issue 
initial decisions?
    Mr. Robbins. Yes, sir, I believe so.
    Mr. Raskin. Okay. Then they are appealable where?
    Mr. Robbins. Well, so once either an administrative judge 
or an administrative law judge has rendered an initial 
decision, either the agencies or the employee has an 
opportunity to appeal either to the full Board, the three 
members, or they can skip us and go directly to--usually it's 
the United States Court of Appeals for the Federal Circuit 
Court.
    Mr. Raskin. Okay. So they would simply lose the possibility 
of going to the Board. They would have to go directly to the 
court of appeals?
    Mr. Robbins. That's correct.
    Mr. Raskin. Okay.
    Mr. Robbins. Which, by the way, has been the case for the 
last two years.
    Mr. Raskin. Okay.
    Ms. Brannon, committee staff asked for your analysis of 
whether the Board could keep functioning as a vacant Board. Do 
you believe that the Board can keep functioning without 
members? Why?
    Ms. Brannon. So I believe that the agency and agency 
officials could likely continue to exercise any delegated 
functions assuming those delegations were permissible prior to 
the Board becoming vacant.
    Mr. Raskin. Gotcha.
    Mr. Robbins, back to you. You say in your testimony that 
one significant function which cannot continue without the 
presence of a Board member is the issuance or extension of 
personnel action stays requested by the Office of Special 
Counsel. Is that correct? If so, can you explain why a general 
counsel or another MSPB employee cannot take over this function 
from you?
    Mr. Robbins. I do believe that is correct. There are two 
reasons. I think, legally, the Board traditionally has not 
believed that certain functions can be delegated, that they 
need to be exercised under Title 5 by the Board; that is, three 
members.
    Stays are a little different because Title 5 provides that 
any one member can grant an initial stay of 45 days, and then 
it takes the Board to extend those stays.
    Congress, two years ago, once the Board became a quorum, 
was pass legislation which allowed any single member to extend 
the initial stays. So that problem was solved.
    But even if legally stays could be delegated down, they 
haven't been. And I can't do that lacking a quorum. Even if 
there was a legal argument that you could delegate stays to the 
general counsel, there's no mechanism to do that without a 
quorum.
    Mr. Raskin. Gotcha.
    Mr. Connolly. Thank you, Mr. Raskin.
    The gentleman from Wisconsin, Mr. Grothman.
    Mr. Grothman. Yes. I guess anybody--how many cases--maybe 
start with this. How many cases do you deal with per year? And 
what are the nature, if you could break them down by the nature 
of the cases you deal with?
    Mr. Robbins. Congressman, we get between 6,000 and 8,000 
cases a year. Again, those are appeals from agency actions that 
go initially to one of our regional or field offices, and the 
case is worked up by an administrative judge.
    Eighty percent, as I said earlier, of those decisions are 
final, because the parties don't----
    Mr. Grothman. Okay. But, I mean, are they like somebody got 
fired? Somebody wasn't promoted? What is the nature of the----
    Mr. Robbins. So the two big areas that we have are adverse 
actions, that is someone is fired, someone is put on leave, 
they're demoted, they lose their pay. We also adjudicate 
retirement and disability claims from OPM.
    Mr. Grothman. Okay. And if you break them down by category, 
how much are the adverse actions and how much, if you've got 
8,000 a year, how many of each?
    Mr. Robbins. The vast majority are adverse actions. I don't 
have the materials in front of me now. We're getting ready to 
issue our 2018 annual report which has a pie chart.
    Mr. Grothman. You think it's five to one, four to one?
    Mr. Robbins. I would think probably 60 percent are adverse 
actions. Maybe 5, 10 percent are disability claims and 
retirement claims. We also hear certain veterans----
    Mr. Grothman. It adds up to 65 percent.
    Mr. Robbins. Right. Then we also hear, you know, we've got 
veterans preference issues. We have we have Hatch Act, which is 
the political restrictions of Federal employees.
    Mr. Grothman. How many times do you overturn the decision 
that was made, at whatever the local level, percentage-wise, 
about?
    Mr. Robbins. Less than 90 probably. Or, no, I'm sorry. We 
affirm usually between 90 and 94, 95 percent of the time.
    Mr. Grothman. Okay. Do you, in your own mind, think that, 
since you're almost always affirming them, that a high number 
of these appeals, if that's what I can call them, are frivolous 
or not much to them?
    Mr. Robbins. You know, I believe that the vast majority of 
employees who file an appeal with us believe that they've been 
wronged. I don't think there's bad faith.
    Mr. Grothman. One other question. Do you sometimes, when a 
filing is made, is sometimes a settlement reached, or is it 
always yes or no?
    Mr. Robbins. No, the cases do settle. They settle if the 
agency and the employee agree on terms of a settlement, and 
then the case is withdrawn.
    Mr. Grothman. Okay. Do you think some of the claims are 
made--I can think of other areas of the world where people make 
claims figuring that I'll give you $10,000 to go away or I'll 
give you $20,000 to go away, it's not worth the bother. Do you 
feel that is going on in your system?
    Mr. Robbins. Oh, I'm sure it is, certainly. I couldn't put 
a percentage on it.
    Mr. Grothman. Okay.
    Mr. Robbins. You know, again, pointing to frivolity in 
filing, I would just go to the poster child, which was the 
sequestration for those 33,000 cases, and none of them had 
merit.
    Mr. Grothman. Okay. It's tough. They always just give us 
five minutes. So when I'm being rude, it's just because that's 
all they give me.
    Therefore, to come back for this fee, I sometimes think a 
fee would be a good thing, because it kind of separates the 
wheat from the chaff.
    How much of a fee--you mentioned $25, but I think it would 
be more than that to really get the junk out of there--how much 
of a fee do you think would be appropriate, or maybe the fee 
should vary with the nature of the claim, to kind of reduce all 
the paperwork you guys have got to deal with?
    Mr. Robbins. A sliding scale would probably be hard to 
administer. I believe the House, when it reauthorized us last 
year, authorized a fee of up to whatever a U.S. District Court 
filing fee is, which I think is $250.
    Mr. York. It was $175. It was the half a district court 
filing.
    That's me.
    Mr. Robbins. Okay. Yes.
    Mr. Grothman. Okay. How many staff do you guys have?
    Mr. Robbins. The Board has about 235.
    Mr. Grothman. Okay. Is it one of those things where the 
staff does the work and the--they do most the work, right?
    Mr. Robbins. Well, I would like to disagree with that, sir.
    Mr. Grothman. I know you'd like to, but if you're being 
honest.
    Mr. Robbins. So, you know, yes.
    Mr. Connolly. Unlike the U.S. Congress.
    Mr. Robbins. What's that?
    Mr. Connolly. I said unlike the U.S. Congress.
    Mr. Robbins. Exactly.
    Yes, of course, the staff does the first level work out in 
the field in regional offices. Then we've got attorneys in 
headquarters which do the first review of the appeals when they 
come in.
    Mr. Grothman. Okay.
    One final question, Mr. York, because the immediate problem 
is the Senate won't take these people up. Is there an 
individual group that really is fighting behind the scenes, 
fighting confirmation of these nominees?
    Mr. York. Sorry. I was----
    Mr. Grothman. You know, the real problem here is the Senate 
is not----
    Mr. York. Sure. Right.
    Mr. Grothman. Is there an individual group who is behind 
the scenes fighting confirmation of these employees?
    Mr. York. Boy, I don't--I'm not privy to any of the 
backroom dealings that may or may not be occurring.
    Mr. Connolly. The gentleman's time has expired.
    Unfortunately, because they've called votes, Mr. Lynch.
    Mr. Comer, are you okay if we adjourn this hearing? I'm so 
sorry you didn't get a chance and Mr. Meadows didn't get a 
chance and I didn't get a chance. But we've just, I think, 
running out of time. If we try to come back, I'm afraid we'll 
be sparse.
    Mr. Lynch, you get the final word.
    Mr. Lynch. Thank you, Mr. Chairman. I appreciate your work 
on this as well as our bipartisan effort by the ranking member, 
Mr. Meadows, and Mr. Hice as well.
    I want to, first of all, thank the witnesses for your help 
on this. It's a tough issue. I don't see any easy solution 
without the cooperation of the White House.
    But I did want to say that oftentimes, Ms. Brannon, this 
committee especially relies on CRS for its work. And very 
seldom do you get recognition or appreciation for the work that 
you do.
    But in our case, this is a committee of unlimited 
jurisdiction, and we often face one-off situations and rely 
heavily on CRS to provide very concise, well-written analyses 
of the problems that we're dealing with. So I just want to ask 
you to take back to your superiors the appreciation of this 
committee on both sides of the aisle for the work that CRS 
does.
    The congressional Research Service is probably below the 
radar screen of most of the people in the United States, and 
you certainly are not given the due respect and appreciation 
that you deserve. So thank you.
    On the substantive matter before us, the professional 
analysts and attorneys who work at MSPB have been working hard, 
but their reports can't see the light of day because the MSPB 
lacks a quorum and cannot vote on whether to make them public.
    So in preparation for this hearing the subcommittee asked 
the Merit Systems Protection Board for a number of major 
reports that are typically generated with respect to the 
government's compliance with civil service laws that have been 
held back from publication for years.
    So, Chairman Robbins, your staff informed us that MSPB has 
a report ready to go on the incidence of sexual harassment in 
executive agencies, but the absence of a quorum means that MSPB 
cannot release it to Congress and the President. Is that 
correct?
    Mr. Robbins. Yes, sir.
    Mr. Lynch. In fact, there's actually eight studies that we 
rely upon, and some of these are keenly important to the work 
that we do and that the government can benefit from.
    I'll just go down a list here. Sexual harassment. 
Prohibited personnel practices. Employee engagement. 
Whistleblowing. That's especially important to this committee 
with the work that we're doing. Supervisory probation. And 
employee performance.
    So some of these are disciplinary in terms of making sure 
that employees are held accountable. Some of them, like in the 
whistleblower case, is to make sure that employees have their 
full spectrum of rights in the work force.
    Chairman Robbins, the MSPB also has a report on 
whistleblowing and the implementation and impact of the 
Whistleblower Protection Act of 2012. That would be, again, 
enormously significant to this committee since we passed that 
bill out of this committee. That is our bill. That's Mr. 
Cummings' bill. Is it correct that you can't share that with 
us?
    Mr. Robbins. That's correct.
    Mr. Lynch. So it's just the issuance of the report. The 
work's been done, but you can't issue the--we can't get the 
benefit of the report because there's not a quorum to 
promulgate that.
    Mr. Robbins. The reports can't be issued without a quorum, 
that's correct.
    Mr. Lynch. Okay. Here are some other important topics that 
I'm told from your staff you can't share with us due to the 
absence of a quorum:
    Employee perceptions on prohibited personnel of practices, 
such as retaliation against whistleblowers.
    Examination of burnout in high stress occupations, such as 
law enforcement. That's very, very important, the mental stress 
that some of our law enforcement are dealing with.
    Discussions of best practices, of improving employee 
performance.
    Mr. Palguta, you headed the Office of Special Studies while 
you worked at MSPB. Is that correct?
    Mr. Palguta. I did.
    Mr. Lynch. Okay. Did the topics that I have gone through 
here, are those especially important to the operation of civil 
service?
    Mr. Palguta. Absolutely. The very first study we issued was 
in 1981 on sexual harassment. There have been several 
followups. The reports on whistleblowing, prohibited personnel 
practices.
    I think the studies function--I'm a little biased, I headed 
the function for a number of years--is quite important. The 
information has been acted upon by Congress over the years. It 
also, within the executive branch, has caused some positive 
movement over the years. Not being able to issue the reports, I 
think, is a real shame.
    Mr. Lynch. Thank you very much.
    Mr. Chairman, my time has expired, and I know there's a 
vote on, so I'll yield back.
    Mr. Connolly. I thank the gentleman.
    Yes, we do have a vote, 360 have not yet voted, but there 
are only, like, 3-1/2 minutes left. So we are going to have to 
wrap up the hearing.
    I thank everybody for participating. As I said, we look 
forward to working on a bipartisan basis to try to fix this. 
And we are committed to doing that. We need counterparts in the 
other body, as Mr. York rightfully pointed out.
    I also want to put in the record, without objection, a list 
of studies that have been underway on eight different topics, 
following up Mr. Lynch's querying, but no report issued, 
frankly, because of lack of a quorum. Without objection, that 
will be entered into the record.
    Mr. Connolly. I want to thank our witnesses for coming 
today.
    Without objection, all members will have five legislative 
days within which to submit additional written questions for 
the witnesses through the chair, which will be forwarded to the 
witnesses for their response.
    I also want to ask our witnesses to please respond as 
promptly as you're able.
    Without objection, all members will also have five 
legislative days within which to submit extraneous materials to 
the chair for inclusion in the record.
    This hearing is now adjourned.
    [Whereupon, at 11:01 a.m., the subcommittee was adjourned.]

                                 [all]