December 21, 2011
Mr. Mark A. Robbins, Esq.
Executive Director (acting)
Election Assistance Commission
1201 New York Avenue, N.W.
Washington, D.C. 20005
Subject: The Future of the Merit Systems Protection Board
Dear Mr. Robbins,
Congratulations on your nomination to the Merit Systems Protection Board (MSPB).
We are current and former federal employees who have utilized the services of the MSPB and/or the U.S. Office of Special Counsel (OSC). In our experience, these agencies have contributed to a much more diminished civil service than the one envisioned during their creation by the Civil Service Reform Act of 1978.
We contend that MSPB has been out of compliance with its positive statutory duty to conduct “special studies” focusing on whether federal employees are adequately protected from prohibited personnel practices (PPP’s), including the whistleblower reprisal type PPP, per 5 U.S.C. § 1204(a)(3). This issue has given rise to numerous suits and FOIA requests, none of which has dispelled these concerns.
We seek your input, either before, during, or after your confirmation hearings (pursuant to questions for the record), to address the special studies concern as well as other pressing matters, such as:
The disparity between evidentiary standards for granting stays (“preliminary relief” is a better description) when sought by OSC and when sought by employees;
The lack of an Inspector General at MSPB;
How the “election of remedies” of 5 U.S.C. 7121(g), by including filing a complaint with OSC, creates a perverse incentive for federal labor unions to want OSC to be ineffective;
Requiring OSC to file a 5 U.S.C. § 1214(e) report with the Board to establish jurisdiction for corrective action; and
Ethical obligations for MSPB attorneys, including any attorney Board Members, when MSPB fails to comply with the law.
You are not yet employed by MSPB, therefore it is not yet your client, and you are not precluded by attorney-client ethics from speaking frankly about its interpretation of, and compliance with, 5 U.S.C. § 1204(a)(3), as well as the issues listed above.
We look forward to your views on these pressing matters.
 See www.broken-covenant.org and www.mspbwatch.net for more information.
 A current FOIA appeal is pending in front of Chairman Grundmann, seeking any agency interpretations ostensibly relied upon by the MSPB in court to justify MSPB’s position regarding 5 U.S.C. § 1204(a)(3). See www.mspbwatch.net/foia for more information.