Several FEMA employees who spoke up about concerns within the agency remain caught in a dispute over their employment status, underscoring longstanding challenges in the federal whistleblower protection system.
The employees were placed on indefinite administrative leave after sending a letter on August 25 outlining what they described as significant deficiencies within the Federal Emergency Management Agency (FEMA). Since then, their employment status has remained uncertain.
On December 1, FEMA management reinstated the employees, saying legal advice showed their actions were protected by the Whistleblower Protection Act and the First Amendment. The employees had been on leave for months before this.
The reinstatement was short-lived. Just hours after the reinstatement was publicized, though, the workers were placed on administrative leave by the Department of Homeland Security (DHS). A DHS spokesperson declared that the FEMA workers were “wrongly and without authorization reinstated by bureaucrats acting outside of their authority.”
Assisted by the Government Accountability Project, the FEMA workers filed a complaint with the U.S. Office of Special Counsel (OSC) after they were first put on leave. The OSC investigates allegations of retaliation against federal employees for whistleblowing.
If a complaint is not resolved by the OSC, employees can appeal to the Merit Systems Protection Board (MSPB). The MSPB adjudicates claims under the Individual Right of Action process. These cases allow federal workers to allege retaliation for whistleblowing.
The MSPB’s ability to function in a timely matter has been hampered in recent years. Between 2017 and 2022, the MSPB lacked a quorum, preventing it from issuing any final decisions. After the quorum was restored in March 2022, it faced a major backlog of cases. This year, the Board again operated without a quorum from April to October. The government shutdown further disrupted its operations.
The uncertainty surrounding the case of the FEMA employees illustrates how delays and jurisdictional disputes can complicate the whistleblower complaint process. For federal employees who exhaust remedies with the OSC, the MSPB is often the final avenue for relief.
This case highlights the broader challenges facing federal whistleblowers seeking protection and adjudication. Until those systems operate consistently, employees who report misconduct may continue to face prolonged uncertainty.
