On September 2, President Biden announced his intent to nominate Tristan Leavitt to the Merit Systems Protection Board (MSPB). The Board oversees federal employee whistleblower cases and has lacked a quorum for over four years, leaving thousands of federal employees in legal limbo.
Leavitt currently serves as the general counsel of the MSPB. In addition, because of the lack of Senate-confirmed Board members, Leavitt “has also led the agency since March 1, 2019 as its acting chief executive and administrative officer,” according to the White House press release. His previous experience includes work at the Office of Special Counsel and on the staff of the Senate Committee on the Judiciary for Senator Chuck Grassley (R-IA).
Biden previously nominated Cathy Harris to be the Chair of the MSPB and Raymond Limon to be Vice Chair. The Senate Homeland Security and Governmental Affairs Committee is tasked with holding hearings on the three nominations, though none have been scheduled. The Senate must confirm the presidential nominees in order for a quorum on the Board to be established and for the MSPB to regain functionality.
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.
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 the number of whistleblower retaliation cases left unattended 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.