In response to a Freedom of Information Act (FOIA) request filed by Whistleblower Network News, the Merit Systems Protection Board (MSPB) has confirmed that there is a current backlog of 3118 federal employee cases at the Board. Of these, 774 are whistleblower retaliation cases sitting in indefinite limbo.
In a letter dated January 28, 2021, the MSPB explained that its staff “conducted a comprehensive search” of the Board’s “electronic case management system” to obtain the statistics related to the current backlog at the MSPB. The case numbers were valid as of January 28, 2021. Each of the cases cannot be resolved until the Board issues a final decision.
“Since 2017 the MSPB has lacked a quorum, and has been unable to issue any decisions in whistleblower retaliation cases,” said whistleblower attorney Stephen M. Kohn. “This situation is intolerable. The Trump administration dropped the ball and left over 3000 federal workers without any remedy under the federal civil service laws. Many of the 774 whistleblowers have been waiting for years for justice, some out of work simply for reporting waste, fraud and abuse in federal spending,” Kohn added.
Kohn, who also serves as the Chairman of the Board of Directors for the National Whistleblower Center, urged President Joseph Biden to immediately nominate the three Board members, and aggressively push the Senate to confirm these nominations. “Unlike other federal departments, the MSPB cannot function based on the rulings of “acting” Board members or career civil servants filling in for vacancies. Only President Biden and the U.S. Senate can fix this problem. They must act now. Thousands of federal employees are being severely harmed by the failure to fill these appointments. The entire federal workforce knows that the Board designed to protect them is dysfunctional. This has a severe chilling effect on potential whistleblowers. The taxpayers are the big losers,” Kohn said.
The three-member MSPB issues final decisions on whistleblower retaliation cases under the Whistleblower Protection Act (WPA). The WPA is the main law protecting federal employees who blow the whistle on fraud, abuse, and mismanagement within the federal government. The Board has been without the two members needed for a quorum since January 8, 2017 and has been without a single member since March 1, 2019. This is by far the longest the 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.