[Congressional Record Volume 165, Number 34 (Monday, February 25, 2019)]
[House]
[Pages H2062-H2064]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
MSPB TEMPORARY TERM EXTENSION ACT
Mr. CONNOLLY. Mr. Speaker, I move to suspend the rules and pass the
bill (H.R. 1235) to provide that the term of office of certain members
of the Merit Systems Protection Board shall be extended by a period of
1 year, to limit such members from concurrently holding positions
within the Federal Government, and for other purposes, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 1235
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``MSPB Temporary Term
Extension Act''.
SEC. 2. MERIT SYSTEMS PROTECTION BOARD MEMBERS: TERM
EXTENSION AND LIMITATION ON SERVICE.
The term of office of any member of the Merit Systems
Protection Board appointed under section 1202 of title 5,
United States Code, serving as such a member on the date of
enactment of this Act shall be extended for a period of one
year beyond the date the member's service would otherwise end
under subsection (c) of such section.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Virginia (Mr. Connolly) and the gentleman from Georgia (Mr. Hice) each
will control 20 minutes.
The Chair recognizes the gentleman from Virginia.
General Leave
Mr. CONNOLLY. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days in which to revise and extend their remarks
and include extraneous material on this measure.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Virginia?
There was no objection.
Mr. CONNOLLY. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I thank House leadership for bringing H.R. 1235, the
MSPB Temporary Term Extension Act, so quickly to the floor at the
request of the Committee on Oversight and Reform.
Chairman Cummings and I introduced this bill to prevent a potential
crisis at the Merit Systems Protection Board, a vacant Board without
any members. Acting Chairman Mark Robbins is and has been the sole
member on the Board since January 2017. His holdover term expires at
the end of this month, the 28th of February, and it cannot be extended
without legislation. We planned to address this issue through regular
order, but circumstances arose that prevented us from doing so.
The subcommittee I am going to chair originally scheduled a hearing
to examine the problem on February 14, but the hearing was postponed to
the end of this month to allow all Members to attend the funerals of
our colleagues John Dingell and Walter Jones.
We hoped that the Senate Homeland Security and Governmental Affairs
Committee would take action to address the problem during its business
meeting on February 20. Although the Senate committee was able to
approve two nominees for the Board, Chairman Johnson indicated he would
withhold those nominations from the Senate floor pending the naming of
a third nominee by the White House.
The Senate committee was also reportedly working on language to
extend Mr. Robbins' holdover term for another year, but no legislation
was considered at the markup, thus our action today.
Given these events, it appears less and less likely that the Senate
will be able to confirm new Board members before time runs out this
Thursday. That is why the Committee on Oversight and Reform, Chairman
Cummings and I, introduced this stopgap measure, H.R. 1235, to ensure
some work by the MSPB will continue. The legislation will provide a
one-time, 1-year extension for Mr. Robbins' term to give the Senate
more time to confirm the additional Board members.
This version of the bill before us eliminates the provision
prohibiting dual appointments because Mr. Robbins assured us he would
continue to recuse himself from working on matters related to OPM and
that he would recuse himself from OPM matters that related to votes he
had taken at MSPB if this bill is enacted.
This amendment is in response to many of the concerns raised by our
Republican friends.
We urgently need to pass this bill because we need to ensure that
MSPB can continue its operations. If Mr. Robbins' term expires without
new members confirmed, it will be the first time in the agency's
history that the Board has no members at all. We will be entering
uncharted new territory, and not good territory.
If there is no principal officer to lead the agency, not only is it
unclear
[[Page H2063]]
which agency functions may continue and which ones must be suspended,
but, also, whether the entire agency must shut down completely. Mr.
Speaker, I urge my colleagues not to risk that shutdown.
There is a lot at stake here. MSPB protects whistleblowers from
retaliation, veterans from job discrimination, and Federal employees
from prohibited personnel practices. The agency ensures that the
Federal civil service is nonpartisan and complies with the merit system
principles.
Since 2017, MSPB has been operating under certain constraints without
a quorum on the Board. This has prevented the Board from hearing final
appeals of agency adverse actions.
The absence of a quorum has also prevented the Board from issuing
special studies of the civil service and reviews of OPM rules and
regulations, as is required. This has resulted in a backlog, Mr.
Speaker, of 2,000 final appeals which will take more than 3 years to
process and eight Merit Systems studies pending issuance by the Board.
The current situation is certainly less than ideal, but let's not
make it worse by doing nothing and creating a complete vacancy on the
Board.
This would cause decisions made by Mr. Robbins, by the way, to be
voided, exacerbating the backlog, and any new Board members who are
finally confirmed would have to start again from square one.
We should not and cannot allow that to happen. Addressing the problem
should be a bipartisan concern, and I believe it is. We cannot let
politics prevent MSPB from doing its job.
The bill in front of us is supported by the American Federation of
Government Employees, the National Treasury Employees Union, the
National Federation of Federal Employees, the Government Accountability
Project, Public Citizen, Project on Government Oversight, the Make It
Safe Coalition, the Senior Executives Association, and the National
Taxpayers Union.
Mr. Speaker, I include in the Record letters of support from those
organizations and a coalition of other stakeholders.
American Federation of Government Employees, AFL-CIO,
Washington, DC, February 22, 2019.
Hon. Elijah E. Cummings,
Chairman, House Committee on Oversight and Reform,
Washington, DC.
Hon. Jim Jordan,
Ranking Member, House Committee on Oversight and Reform,
Washington, DC.
Dear Chairman Cummings and Ranking Member Jordan: On behalf
of the American Federation of Government Employees. AFL-CIO
(AFGE), I am writing to urge support for the ``Merit Systems
Protection Board (MSPB) Temporary Term Extension Act,''
introduced by Congressman Elijah Cummings (D-MD). This
legislation would allow the term of the current and only MSPB
member to be extended and avoid having a vacant Board.
An employee may appeal an adverse action to the MSPB, a
third-party agency that hears and adjudicates civil service
appeals. MSPB administrative judges (AJs) hear the matter in
an adversarial setting and decide the case in accordance with
established legal precedents. If dissatisfied with the AJ's
decision. either the agency or the employee may appeal the
decision to the full three Member MSPB. Currently, the Board
does not have a quorum. Mark Robbins is the only member on
the Board and his term expires on February 28, 2019. Robbins'
original term ended in March 2018, and he is currently
serving under a maximum one-year statutory extension.
When Robbins' term expires, the Board will have no
Presidentially-appointed members. The ``MSPB Temporary Term
Extension Act.'' would allow for Robbins to extend his term
for one additional year and avoid having an MSPB with no
members. AFGE believes that the MSPB serves an important role
in upholding the Merit Systems Principles and the rights of
federal employees. Therefore, AFGE strongly urges you to
support the ``MSPB Temporary Term Extension Act.'' to allow a
temporary carryover of the current and only member of the
MSPB. Thank you.
Sincerely,
J. David Cox, Sr.,
National President.
NTEU, The National Treasury Employees Union,
Washington, DC, February 19, 2019.
Hon. Elijah E. Cummings,
Chairman, House Committee on Oversight and Reform,
House of Representatives, Washington, DC.
Dear Chairman Cummings: On behalf of the National Treasury
Employees Union (NTEU), representing over 150,000 federal
employees in 33 agencies, 1 write to applaud your efforts to
support the important work performed by the Merit Systems
Protection Board (MSBP or Board) and ensure that it can
continue. We believe that your bill, the MSPB Temporary Term
Extension Act, is the appropriate response to address the
impending loss of leadership at the Board.
As you know, Mark Robbins is the Acting Chairman and the
only Member left on the Board. His original term expired last
year and his holdover year will expire on February 28, 2019.
Given the uncertainty regarding the operations of the Board
once Mr. Robbins' term ends, we appreciate that your bill
would temporarily allow Mr. Robbins to remain on the Board
for a short period of time while the President's nominees for
the MSPB undergo Senate consideration. We also appreciate
that the bill stipulates that the individual who would be
allowed to extend their term would be unable to hold another
position in the government at the same time.
NTEU fully supports your carefully crafted temporary
extension bill and we appreciate your efforts to safeguard
the employee protections envisioned in the Civil Service
Reform Act. Thank you.
Sincerely,
Anthony M. Reardon
National President.
____
February 25, 2019.
Hon. Elijah Cummings,
Chairman, Committee on Oversight and Reform, Washington, DC.
Hon. Gerald Connolly,
Chairman, Subcommittee on Government Operations, Washington,
DC.
Hon, Jim Jordan,
Ranking Member, Committee on Oversight and Reform,
Washington, DC.
Hon. Mark Meadows,
Ranking Member, Subcommittee on Government Operations,
Washington, DC.
Dear Chairman Cummings, Ranking Member Jordan, Chairman
Connolly, and Ranking Member Meadows: On behalf of the
undersigned organizations, who all strongly value and support
our nation's professional nonpartisan civil service, we write
to express our concerns about the future of the Merit Systems
Protection Board (MSPB) and convey our support for H.R. 1235.
As you know, the Board has already operated under
unprecedented circumstances, lacking a quorum for nearly two
full years. The result has been a backlog of nearly 2,000
cases and a delay in justice for federal employees,
whistleblowers, veterans, and federal annuitants with matters
before the Board, as well as a lack of closure for agencies
in personnel matters. Moreover, due to the lack of quorum the
Board has been unable to issue official reports or studies to
Congress and the President during a critical time in which
there is growing appreciation for the imperative of
modernizing our civil service.
On February 13 the Senate Homeland Security and
Governmental Affairs Committee advanced two of the
President's MSPB nominees, yet they are still awaiting floor
action pending nomination of a third Board member by the
President. Should the Senate be unable to approve the Board
nominees and restore a quorum, effective March 1 the Board
would be without any Senate-confirmed leadership for the
first time in its history, due to the expiration of acting
chairman Mark Robbins' holdover period.
In order to ensure that the Board can continue operations
at the most basic levels, including the critical role in
issuing stays in whistleblower cases, passage of legislation
to extend the holdover period for the Board is imperative. We
strongly urge passage of H.R. 1235 to prevent the current
crisis with the Board from doing permanent damage to the
merit system and the civil service.
Thank you for your consideration of our perspective on this
critical matter.
Sincerely,
FAA Managers Association (FAAMA), Federal Managers
Association (FMA), Government Accountability Project
(GAP), Tom Devine, Liberty Coalition, National Council
of Social Security Management Associations (NCSSMA),
National Federation of Federal Employees (NFFE),
National Taxpayers Union, National Whistleblower
Center, Professional Managers Association (PMA),
Project on Government Oversight (POGO), Public Citizen,
Senior Executives Association (SEA), Taxpayer
Protection Alliance, Union of Concerned Scientists,
Whistleblowers of America.
Mr. CONNOLLY. Mr. Speaker, I urge my colleagues to join me in
supporting H.R. 1235, a commonsense stopgap measure to prevent serious
injury to hardworking civil servants who expect the Merit Systems
Protection Board to function.
Mr. Speaker, I reserve the balance of my time.
Mr. HICE of Georgia. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I rise today to speak on H.R. 1235, the MSPB Temporary
Term Extension Act.
My colleagues on the other side of the aisle know that I personally
am committed to ensuring the successful operation of the Merit Systems
Protection Board, also known as MSPB. In fact, last Congress, I
introduced H.R. 6391, the MSPB Reauthorization Act of 2018. My bill
would have reauthorized the Board and made other vital reforms. The
Committee on Oversight
[[Page H2064]]
and Government Reform reported the bill favorably, but without a single
vote from my colleagues on the other side of the aisle.
We all know an effective and functional MSPB is important to the
health of our Federal workforce. MSPB's primary responsibility is to
adjudicate appeals of Federal personnel actions. MSPB also plays a
vital role in Federal whistleblower protections.
To be effective and issue decisions, MSPB needs at least a two-member
quorum, but the Board has not had a quorum for over 2 years. In January
2017, Mark Robbins, as my friend mentioned, become the sole remaining
member of MSPB.
Last year, Mr. Robbins' 7-year term came to an end, and he was
granted a 1-year extension as authorized by law, but that extension
ends this week. Starting Friday, the MSPB will be without a single
Board member.
My colleagues claim this bill is an emergency measure to prevent the
MSPB from extending this crisis of leadership, but I disagree. The real
problem is the lack of a quorum.
Without a quorum for the last 2 years, a backlog of undecided appeals
has grown to over 1,700 cases. Mr. Robbins cannot fix that problem on
his own. His continued tenure will not resolve those cases.
In December, the President selected Mr. Robbins to serve as the
general counsel at the Office of Personnel Management, so for the last
10 weeks, he has served in both capacities at OPM and MSPB. Mr. Robbins
is planning to serve at OPM in his full capacity beginning this Friday.
Mr. Robbins has stayed at MSPB as long as he has out of a sense of
duty to MSPB and its mission. I trust that my colleagues do not intend
to use this bill to coerce Mr. Robbins to stay any longer than he wants
to.
{time} 1745
I urge my colleagues to join me in applauding Mr. Robbins for his
dedication to MSPB, the Federal workforce, the President, and our
country. I also urge my colleagues to join me in supporting the
Senate's confirmation of President Trump's nominees.
We owe it to our Federal workers to give MSPB a quorum so the board
can do the important job that Congress gave it to do.
In the future, I certainly hope we can work together to provide
certainty to Federal workers and whistleblowers by making MSPB
operational once again.
Mr. Speaker, I have no further speakers, and I yield back the balance
of my time.
Mr. CONNOLLY. Mr. Speaker, I yield myself the balance of my time.
Briefly, in responding to my friend: I agree with him. I think we
need a full board. Our problem is the Senate. They didn't get around to
acting in a timely fashion, and so we are faced with this.
I think it is also important to note that, although a quorum is
necessary for most work of MSPB, it isn't necessary for all of it.
So Mr. Robbins, in a caretaker, interim position, can still do some
of the work of the board, including issuing stays, reviewing some of
the work, and helping to avoid adding to the backlog.
He can't substitute himself fully, obviously, for a quorum in the
board. My colleague is quite right about that.
What we are trying to do here is not to compel him or coerce him to
stay against his wishes; it is to try to buy some time and have the
board at least do some of its basic functions so that we don't come to
a complete standstill. That would not be necessary, frankly, had the
Senate acted.
I think my friend is right in suggesting that is the ultimate answer,
and I would join him in calling on the Senate to act as swiftly as
possible. But I think we have no choice but to act on this bill now.
With that, Mr. Speaker, I urge passage of the bill, and I yield back
the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Virginia (Mr. Connolly) that the House suspend the rules
and pass the bill, H.R. 1235, as amended.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill, as amended, was passed.
The title of the bill was amended so as to read: ``To provide that
the term of office of certain members of the Merit Systems Protection
Board shall be extended by a period of 1 year, and for other
purposes.''.
A motion to reconsider was laid on the table.
____________________