Whistleblower advocates continue to pressure the U.S. Senate to vote on nominees for the Merit System Protections Board (MSPB). On February 15, a collection of close to one hundred civil society organizations, including Whistleblower Network News, sent a letter to Senators Chuck Schumer (D-NY) and Mitch McConnell (R-KY) urging the Senate leaders to allow the full Senate to consider and vote on the pending nominations for all three MSPB vacancies.
The MSPB has lacked the two members needed to form a quorum since January 2017. In October 2021, the U.S. Senate Committee on Homeland Security & Governmental Affairs voted to advance President Biden’s three nominees for the Board: Cathy Harris, Raymond Limon, and Tristan Leavitt. A full Senate vote on the nominees has yet to be held, however.
Without a quorum, the MSPB is unable to issue final rulings on whistleblower retaliation cases for federal employees. This means that federal employees who were fired or otherwise retaliated against for blowing the whistle on misconduct have been left in legal limbo for years. The MSPB currently estimates there is a backlog of over 3500 cases pending before the Board. According to former MSPB member Mark Robbins, this backlog could take over 5 years to work through.
“We urge you to go beyond these abstract descriptions to consider the devastating impact on people’s livelihoods and careers, as well as the corrosive toll on the public interest and the public purse,” the groups’ letter states. “Behind these cases are individuals and their families desperately seeking legal relief, often from reprisal like job termination and loss of income after they patriotically sought to expose governmental waste or wrongdoing at great personal and professional risk to themselves. Paralysis on the Board is even creating perverse incentives for federal agencies to appeal the most meritorious whistleblower claims that won in earlier stages to the full Board, knowing that those claims will then be forced to sit unresolved. Furthermore, the longer that federal employees’ merits system cases are forced to wait for resolution, the larger the back pay ordered to be paid could be to federal employees with wrongful termination or demotion claims.”
The letter further warns that lack of a quorum at the MSPB “is jeopardizing the existence of meaningfully enforceable employment rights for millions of Americans, including whistleblowers.”
“It is time for the U.S. Senate to meet its advice-and-consent obligations under the Constitution and make the final decision in the confirmation process for all the Board nominations,” the letter concludes. “Doing so is vital not only to advance the rights of whistleblowers and to make good on bipartisan calls for greater accountability in government, but also to ensure that current law can be implemented and upheld as envisioned.”