The Merit Systems Protection Board (MSPB) was established in 1979 as the successor to the US Civil Service Commission. It protects rank and file civilian federal workers from unlawful suspensions or terminations of employment, e.g., for identifying with the party out of executive power. Its actual workload is far more mundane. When I clerked at the federal appellate court with jurisdiction over the MSPB, most of the cases I saw involved conduct — absenteeism, drug use, sex in the workplace — that would get you sacked from a private sector job. There were, however, enough whistle-blower retaliation cases to remind us that the Board’s work is relevant, even in a reasonably clean administration like Clinton’s or Bush I’s.
The MSPB currently lacks a quorum, which means it cannot decide cases. The last Board member will see his term expire this month, though it might be extended for another year. And the administration has shown no sign or interest in appointing new members. What does this mean? Aggrieved federal workers can still have their cases heard by an Administrative Law Judge. The ALJ can still order reinstatement and back pay, and the agency has to obey that order — unless it appeals to the defunct MSPB, at which point the order is suspended and the worker is screwed.
In other words, the only thing preventing Trump from conducting Stalinite purges of the federal workforce is our Republican Congress and the impeachment power they’ll never exercise. I exaggerate, though not by much. To purge an agency of its non-deplorables, Trump would need either a compliant Office of General Counsel or a cabinet secretary/head of agency willing to appoint one. Somebody has to file those appeals to the Board!
I hope this is a case of Trump’s laziness and incompetence, that at worst he’s spotted a way to screw over federal workers without fully recognizing how far he could go with it. But since taking office, he’s systematically exceeded my worst expectations, and when 2020 comes around, who knows what he’ll do.
