Merit Systems Protection Board: A crack in the whistleblower protection system

Federal employees who face retaliation for blowing the whistle have an option for redress: the Merit Systems Protection Board (MSPB).

The only problem is — there’s currently no one on the board and their hasn’t been a quorum since 2016. It has a backlog of more than 2,000 cases and a record of siding with the boss.

The MSPB, whose three board members are appointed by the President and confirmed by the Senate, reviews the whistleblower cases of federal employees and makes the final determination. Somebody has to have the back of the federal employees who have been marching into the Capitol to testify each day.  A piece in Mother Jones talks about how recent concerns over whistleblower protection have highlighted the role of the board — and the problem of not having one.

When it’s working, the MSPB protects whistleblowers who reveal wrongdoings in the management of most federal agencies, covering more than 2 million civilian federal employees. The board was created in 1979 to address retaliation against whistleblowers. When whistleblowers were demoted, stripped of responsibilities, or fired, they were able to turn to the three-member board of the MSPB for intervention. Recent members of the board have been labor lawyers with experience in government.

Toni Savage’s cases has been caught up in the MSPB backlog.

In an op-ed in The Hill, Rory E. Riley-Topping with National Veterans Legal Services Program notes that MSPB review is offered as an option for those who want to avoid the dysfunctional Veteran’s Affairs whistleblower office.

However, the MSPB is far from an idyllic portrait of justice; federal employees won relief in just three percent of cases over the last three years, and federal employees are temporarily without an option for a mid-level appeal, because the three-member, presidentially appointed board at the MSPB is currently without any members, and has been without a quorum for the past two years, creating an exhaustive backlog of cases.

Staff at the National Whistleblower Center have been tracking developments at the MSPB for years. They argue that, unlike private sector workers, federal employees have to go to the MSPB. They cannot take their cases to federal district court.

That means that these employees cannot appeal to a court for justice; only a single administrative law judge, or at most the three-person panel of the MSPB, can make a decision on their case. There are no options for federal court access, and certainly no hope of having a jury of their peers.

More on the NWC position and the case of Toni Savage.

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