President-elect Joe Biden has talked a lot about restoring transparency and accountability to the federal government. To do so, Biden must immediately appoint members to the Merit System Protection Board (MSPB).
For the entire Trump administration, MSPB has been without the two members needed for a quorum and has been unable to issue final rulings on retaliation cases for federal whistleblowers. Federal whistleblowers have therefore been stuck in legal limbo and unable to get recourse for retaliation.
In addition to the hardships this has brought upon the brave federal employees who have risked their careers to expose corruption and mismanagement, the lack of a MSPB quorum has presumably had an immense chilling effect on whistleblowing at all levels of the federal government.
Whistleblower protections are essential to a fair and transparent government. Currently, the entire system of protections for federal whistleblowers has been rendered moot. Without an effective system to protect federal whistleblowers, the American public cannot trust that mismanagement and abuses of power within federal agencies are being properly checked. President-elect Biden and Congress must act swiftly to remedy this situation.
MSPB was established in 1979 by the Civil Service Reform Act (CSRA) and is meant to ensure the integrity of the federal merit systems and protect federal employees from abuses by agency management. A part of the CSRA, the Whistleblower Protection Act (WPA) is the main law protecting federal employees whistleblowers from retaliation. The WPA broadly prohibits management at federal agencies from carrying out “adverse action” (ranging from a change in job duties to termination) in response to an employee making a disclosure of potential wrongdoing. Under the WPA, it is the three-person MSPB who makes the final decision on retaliation cases. If MSPB rules in favor of the whistleblower, that individual is entitled to reinstatement, backpay, and attorney fees.
However, since January 2017, MSPB has had less than the two members required for a quorum and thus has been unable to rule on a single retaliation case in the previous four years. In fact, since February 2019, MSPB has been without a single member. This is by far the longest MSPB has been without a quorum in history. MSPB members are appointed by the President and confirmed by the Senate. Two Board members are required to be of the political party in control of the White House while the third is to be of the opposition party. While President Trump has nominated Board members, the Senate has not acted to hold a vote on their nominations.
The lack of a quorum has led to an immense backlog of cases. In MSPB’s Fiscal Year 2019 Annual Report the number of backlogged cases was reported to be 2,529. A year has passed since that report and that number has only continued to grow. Even when the MSPB finally has a quorum again, it may take years to work through this backlog.
This backlog of MSPB cases is more than just an administrative nightmare. Without a quorum to issue final rulings, federal whistleblowers seeking recourse for retaliation under the WPA are stuck in legal limbo. Federal whistleblowers who were fired for their disclosures may remain out of work for years. The financial and emotional cost to these brave whistleblowers and their families cannot be understated.
At the same time, the current situation at the MSPB seriously threatens to have a profound chilling effect on federal whistleblowing. Federal employees who see the lack of a path to recourse if they face retaliation may understandably balk at the thought of blowing the whistle. Cultures of retaliation towards whistleblowers are well documented across the federal government. Whistleblowing is an essential check to mismanagement and abuses of power within the federal government. Without a system that promotes and protects federal whistleblowers, taxpayer dollars will go to waste, the environment will be further destroyed, and American lives will be unnecessarily lost.
As designed, MSPB is an imperfect system to protect federal whistleblowers. The fact that Board members are Presidential appointees raises the specter of political partisanship in rulings. Furthermore, the lack of whistleblower rewards and general inability for federal whistleblowers to have their cases heard in federal court means that, as a whole, whistleblower laws for federal employees are generally weaker than those protecting most corporate employees. Even so, a functional MSPB is still immeasurably more effective at promoting whistleblowing and protecting whistleblowers than the currently crippled and dysfunctional MSPB we have.
According to a recent Marist poll published by WNN, the American public overwhelmingly supports stronger protections for federal whistleblowers. 86% of American adults responded that they agree that there should be stronger legal protections from harm for whistleblowers who are federal employees. In this case, it is not even an issue of passing stronger legal protections. Biden and Congress simply need to act to ensure that the current legal protections function as designed.
President-elect Biden has talked a lot about restoring trust in the federal government. Immediately nominating MSPB members and working with the Senate to expedite their confirmation is a necessary step in doing so.