On April 28, President Biden announced his intention to nominate Cathy Harris to be the Chair of the Merit Systems Protection Board (MSPB). The MSPB oversees federal employee whistleblower cases and has lacked a quorum for over four years, leaving thousands of federal employees in legal limbo.
Whistleblower advocates are calling on the Senate to act quickly to confirm the nomination. Even if Harris is confirmed by the Senate, however, the Board will still be short of the two-member total needed to form a quorum.
“The Senate Homeland Security Committee needs to act on this nomination immediately,” said whistleblower attorney Stephen M. Kohn, of Kohn, Kohn & Colapinto. “Whistleblowers have waited four years for appointments to be made to the Board. They have suffered from these delays.”
Harris is currently co-manager of the firm Kator, Parks, Weiser & Harris, (KPWH) and serves as the Chair of KPWH’s Sexual Harassment and Sexual Orientation, Transgender, and LGBT Practice sections. According to her bio, Harris “represents employees in all aspects of their employment, including discrimination and retaliation, management investigations, Inspector General investigations, negotiations of employment contracts, terminations, disciplinary actions, hostile work environments, whistleblowing, and disability retirement.”
The three-member MSPB issues final decisions on whistleblower retaliation cases under the Whistleblower Protection Act (WPA), 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. To maintain bipartisanship, 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.
Unlike other federal agencies, the MSPB cannot function with “acting” members filling in for political nominees. Thus, due to the lack of a quorum, the MSPB has not issued a final ruling on a single case in over four years. In January, WNN published an exclusive story revealing that there was a backlog of 3118 federal employee cases at the MSPB at the beginning of 2021. Of these, 774 were whistleblower retaliation cases. These statistics were provided by the MSPB in response to WNN’s Freedom of Information Act (FOIA) request and can only have grown over the past months.
Even when the MSPB finally has a quorum again, it may take years to work through this backlog. And 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. Simultaneously, the lack of quorum could serve as a deterrent to an incalculable number of potential whistleblowers.
Dr. Toni Savage is a whistleblower who reported millions of dollars of contract fraud that openly occurred at the Army Corps of Engineers Huntsville Command. She faced severe retaliation for blowing the whistle, including an overtly hostile work environment, negative performance reviews, and eventually termination from her job. She filed a whistleblower retaliation case with the MSPB, and in 2015, the MSPB ruled in her favor. However, administrative proceedings kept her case from being finalized before the MSPB lost its quorum. Because of the MSPB’s lack of quorum, a final ruling has yet to be issued on her case and she has been unable to receive any relief whatsoever.
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 their 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 state that they trust that the Senate will act quickly to confirm qualified nominees.