Championing Responsible National Security Policy

Short-Staffed: Vacancies Leave Life-Altering Oversight Work for Later

If I were to walk around the National Mall right now and ask a tourist how they feel about vacancies on the Labor Department’s Administrative Review Board, there’s a strong likelihood they would just keep walking while muttering something about “just wanting to see the cherry blossoms.”

Fair enough. Vacancies in federal offices is not a particularly glamorous topic and “Administrative Review Board” screams of bureaucracy.

So, why should you care?

This is a perfect example of a seemingly insignificant department that actually has major impact—the Administrative Review Board plays a crucial role in enforcing worker protection laws on behalf of the Secretary of Labor. The Board hears appeals cases about issues like child labor, job discrimination, worker safety, and whistleblower retaliation, and it is currently down to just two members on what should be a five-member panel.

Early this year, two Obama-era judges left the Board—one resigned, while the other left when his term expired. While the Trump Administration’s Secretary of Labor, Alexander Acosta, could appoint new judges whenever he wishes, he has yet to do so.

When functioning as it’s supposed to, the Board effects real change in workers’ lives by hearing their appeals cases. The American public also benefits because the Board decides claims of whistleblower retaliation, making it more likely that future whistleblowers will come forward with information that exposes threats to public health and safety.

For example, Environmental Protection Agency employee Dr. Cate Jenkins recently won on appeal to the Board in a case involving the EPA’s cover-up of health hazards at the World Trade Center after the September 11 attacks.

Dr. Jenkins exposed the fact that the EPA funded scientific tests on the dust from the collapsed World Trade Center buildings and knowingly concealed the findings of toxicity. The dust contained known carcinogens like asbestos and lead, which caused mesothelioma and lung cancer in 9/11 first responders and others who worked at the disaster site.

As Dr. Jenkins explained, “These falsifications directly contributed not only to emergency personnel and citizens not taking adequate precautions to prevent exposures, but also prevented the subsequent correct diagnosis of the…[cause of their]…symptoms. Thus, appropriate treatment was prevented or misdirected, and loss of life and permanent disability undoubtedly resulted.”

The EPA retaliated against Jenkins after she blew the whistle by firing her on false allegations in 2010. The recent Administrative Review Board decision concludes her almost 20-year-long fight with the EPA from her initial disclosures about the toxic dust, through a 2015 Labor Department decision finding that the EPA retaliated against her, to this final ruling.

This is just one of many cases dealing with worker health and safety that the Board hears, and demonstrates the important role it plays in enforcing workers’ rights. However, without a full and diverse panel of employment law experts, sitting judges are limited in the number of cases they can handle, and they suffer the absence of their would-be colleagues’ expertise as they make their legally binding decisions.

Similar administrative absences are causing problems in other agencies across the federal government. The Project On Government Oversight recently wrote about vacancies at the Merit Systems Protection Board and the Privacy and Civil Liberties Oversight Board.

The Merit Systems Protection Board (MSPB) is a quasi-judicial agency tasked with promoting an effective federal workforce that is free of prohibited personnel practices such as discrimination, sexual harassment, and whistleblower retaliation. In its work, the Board rules on federal employee appeals and issues reports and studies that review the significant actions of the Office of Personnel Management, such as regulations and agency guidance that may conflict with civil service protections.

Unfortunately, the MSPB has not had its required two-member quorum for over a year. As a result, there is a backlog of over 750 cases that the Board’s sole member, Mark Robbins, has been reading while he awaits his future colleagues’ confirmations. In the meantime, the lives and careers of appellants with pending cases are on hold as they wait in a motionless queue for the Protection Board’s review.

President Trump recently nominated Andrew Maunz to replace Mark Robbins, and Dennis Dean Kirk to serve as a second Member. If confirmed by the Senate, the nominees would restore a quorum to the MSPB—but it could be months before that happens.

The Privacy and Civil Liberties Oversight Board (PCLOB) has a similar problem and an equally important function. The Oversight Board is responsible for reviewing classified information across U.S. intelligence agencies in order to advise agencies on how to minimize violations to Americans’ privacy rights. That’s a tall order. But, like the Administrative Review Board and the Merit Systems Protection Board, PCLOB doesn’t have enough members to actually do its work.

As POGO explained last year, “the [Oversight] Board is supposed to be led by a bipartisan group of five people: a full-time chair and four part-time members who are nominated by the president and confirmed by the Senate. Due to a string of departures over the last year, it’s down to just one part-time member.” Without a quorum of at least three members, it can’t launch any new oversight investigations or even hold public meetings. There is still just one member today.

President Trump nominated Adam Klein to chair the PCLOB in September 2017 and nominated two additional members this month, but the Senate has not yet scheduled their confirmation hearings.

While these administrative boards are little-known to those who aren’t actively engaged in government oversight work, that doesn’t diminish the importance of the work they do or the harm that is caused by their absence. It is essential that we stay engaged and call on leaders in Congress to demand qualified nominees to these and similar positions, and to act on the nominees it has before it, so that these review boards can once again take up the vital work they were created to do.