The Merit Systems Protection Board (MSPB), the quasi-judicial agency tasked with ruling on federal employee whistleblower retaliation cases, has lacked a quorum for over 5 years. Because the Board has been unable to issue any final rulings since losing a quorum, whistleblowers have been left in legal limbo and an immense backlog of cases has piled up. In a new interview, a former MSPB member predicts how long it would take the new board to work through the backlog.
Mark Robbins is the most recent MSPB member: his term expired in March 2019. On January 28, Robbins spoke with the Federal News Network about the MSPB’s backlog. In January 2021, WNN reported that the MSPB had a backlog of 3118 cases. This number is now estimated to be at about 3600. Robbins predicted this backlog would take at least five years to resolve.
“If the new board, whenever it gets there, operates consistent with tradition for the board,” Robbins said, “that amount of cases would take about five years to process, just given the amount of staff and the time that the three new members are going to need to read through these files. But five years is a vacuum because there are new cases coming in and the new board will have to prioritize the import of new cases with those that have been in existence for up to five years.”
The immensity of the backlog threatens to cripple the whistleblower protection system for federal employees even after a quorum is restored at the MSPB. Whistleblowers who may be out of work and emotionally distressed will face several years of hardship before the Board is able to grant them the relief they are entitled to under the Whistleblower Protection Act. Furthermore, potential whistleblowers seeing the Board’s dysfunction may decide to not expose misconduct or abuse due to the length of time it will take for their case to be heard should they be retaliated against.
President Biden has nominated three individuals for the Board: Cathy Harris, Raymond Limon, and Tristan Leavitt. In October 2021, the U.S. Senate Committee on Homeland Security & Governmental Affairs voted to advance all three nominees. A full Senate vote was not held before the end of the calendar year, however. The nominations of Limon and Leavitt were carried over into 2022 by bipartisan support but Harris had to be renominated by President Biden.
Robbins expressed his support for the nominees, stating: “I have full confidence in the president’s three nominees right now.” Whistleblower advocates continue to push for an immediate Senate vote on the nominees.