New statistics obtained by Whistleblower News Network (WNN) expose the harm federal whistleblowers must endure because the administrative board tasked with ruling on their cases has lacked a quorum for over four years. The lack of a quorum means that this Board, formally known as the Merit Systems Protection Board (MSPB), has not ruled on a single federal whistleblower case for over four years. Unlike other federal agencies, the MSPB cannot be temporarily filled with “acting” members. Instead, the two-member quorum is limited to individuals who must be appointed by the president and confirmed by the Senate. Federal whistleblowers remain unable to obtain relief or reinstatement because qualified nominees were not submitted for Senate confirmation. It is now up to the Biden administration to do the right thing and appoint qualified nominees. As WNN previously reported, 774 pending whistleblower retaliation cases remain in indefinite limbo as of January 2020. That number is undoubtedly higher today.
The National Whistleblower Center says that these statistics alone should signal “President Biden to take immediate action to establish an MSPB quorum.” But statistics cannot tell the whole story. Dr. Tommie “Toni” Savage is an African American woman whose esteemed career and health were impacted after blowing the whistle. She reported millions of dollars of contract fraud openly occurring at the Army Corps of Engineers Huntsville Command. Dr. Savage’s ordeal began in 2006. Dr. Savage, with the help of expert whistleblower counsel Michael D. Kohn, overturned an administrative judge’s ruling by bringing her case to the MSPB. Her case established, for the first time, a hostile work environment cause of action for federal whistleblowers. After this precedent-setting decision, her case went before the MSPB for a final ruling on her hostile work environment claim and has remained in legal limbo since June 2016. Dr. Savage first told her story at the National Whistleblower Center’s annual National Whistleblower Appreciation Day event. She described whistleblowers as “courageous, loyal, dependable, brave, dedicated, heroic, and patriotic,” adjectives that also apply to Dr. Savage.
Dr. Savage began her career with the Army Corps of Engineers Huntsville, Alabama Support Center in 1993 as a paid intern. For the next dozen years, she consistently received nothing but the highest exceptional annual reviews. She was constantly promoted and singled out for top contracting honors. In 2006, Dr. Savage became the Corp’s first Black woman to head the Huntsville contracting office. That position allowed her to observe what was occurring within the Corp’s “Ranges Program” – the program responsible for designing and constructing military training facilities worldwide. Dr. Savage’s attorney said she was bewildered by what she observed – open contracting fraud she could not allow to continue on her watch. She told what was going on to the Corp’s Huntsville chief counsel and her chain of command, including the commander. All refused to take corrective action. So, she pressed on and presented her concerns to the Corps’ Huntsville auditing department. The auditors concluded that everything Dr. Savage had identified was true. When the auditors attempted to prepare a written report, they were ordered by the Huntsville commander to suppress their findings. The report was not released, and Dr. Savage was removed from her position. A member of the audit team was so disgusted with what was occurring that she resigned and gave Dr. Savage a copy of the suppressed report. Dr. Savage then submitted the report in support of her retaliation claims that were already pending before the agency’s Equal Employment Opportunity (EEO) office.
Once the draft report was released, the commander had little option but to allow a final report to be issued. The final report’s release meant that an outside army officer would be brought in to review the alleged wrongdoing and issue an official Army AR15-6 report. The Army officer’s final report explicitly stated that Dr. Savage was the only person who did the right thing and deserved praise. At the same time, he condemned the commander, chief legal counsel, and others for allowing the fraudulent contracting behavior to fester. That report was then secreted and never made known. Instead, Dr. Savage became the enemy and was subjected to sadistic treatment that included insensitive racial conduct. While one would hope the report’s release would have fixed the problem, it ended up doing the opposite. Through deception, the Huntsville command concealed the existence of the AR15-6 report and redoubled its psychological warfare against Dr. Savage. She refused to give in and continued to blow the whistle until her body gave in. She developed PTSD and was diagnosed with a permanent psychological injury. According to her attorney, her performance was downgraded. Her entitlement to awards for performance was given to others. She was subjected to disgusting, racially insensitive comments and belittled. The psychological warfare she was subjected to eventually made it impossible for Dr. Savage to enter her workspace without suffering immediate and severe panic attacks. When her requests for reassignment were reused, and her request to work at home denied, she was terminated in 2009 for being AWOL.
Dr. Savage was eventually entitled to file a whistleblower individual right of action (IRA) appeal with the MSPB. This landed her before a MSPB administrative judge who could at most issue a recommended decision. Her whistleblower case forced the agency to produce the secreted AR15-6 report that praised Dr. Savage and condemned those responsible for causing her psychological injury. The administrative judge refused to accept the concept of a hostile work environment defense for an employee with an AWOL charge. However, he did rule that she had been systematically subjected to downgraded performance reviews and denied recognition for her achievements. When that recommended decision was brought before the MSPB, a landmark decision established that federal whistleblowers were entitled to bring hostile work environment claims. That decision was issued September 3, 2015, and it likewise concluded that Dr. Savage had, in fact, been subjected to repeated retaliatory downgraded performance reviews and awards for excellence. Her case was sent back to the same administrative judge who refused to rule on the existing record as requested by Dr. Savage. She was to endure a second administrative trial. The administrative judge once again ignored the hostile work environment claim and refused to accept that a hostile work environment could result in post-traumatic stress disorder (PTSD). Setting aside her hostile work environment claim, which is still to be decided, Dr. Savage won her case. Then the Board lost its quorum, leaving Dr. Savage in legal limbo for almost five years to date.
The MSPB has decided that rulings that are no longer appealable are final in all respects – except that they cannot be implemented until her final appeal on her hostile work environment claim is decided. Her legal costs for two trials drained her retirement account, which cannot be restored.
“Dr. Savage is an American hero and a credit to the federal civil service. She gave up a promising career and, ultimately, her health to expose government contracting fraud her superiors were covering up. The WPA and MSPB are meant to ensure that heroic whistleblowers like Dr. Savage are protected. But this system is broken. Dr. Savage has suffered in a manner that no honest and hardworking federal civil servant should ever have to endure,” said Kohn.
Dr. Savage cannot obtain any relief whatsoever until President Biden nominates members for the MSPB and the Senate confirms these members. Until this happens, thousands of whistleblowers and federal employees who are in a similar position to Dr. Savage will wait in a state of bureaucratic limbo. Simultaneously, the lack of quorum could serve as a deterrent to an incalculable number of potential whistleblowers.
On April 5, a bipartisan pairing of U.S. Representatives sent a letter to President Biden urging him to nominate Board members to the MSPB. In the letter, Representatives Gerald Connolly (D-VA) and Jody Hice (R-GA), the Chairman and Ranking Member of the Subcommittee on Government Operations, note that “[t]he MSPB’s lack of a quorum has concerned this Subcommittee [on Government Operations] and the Committee on Oversight and Reform for some time.” They request that Biden prioritize the nomination of Board members and trust that the Senate will act quickly to confirm qualified nominees.
“This failure can’t go unaddressed,” agrees Kohn. “President Biden must do the right thing and nominate qualified MSPB Board members.”