Since January 8, 2017, the U.S. Merit Systems Protection Board (MSPB) has lacked a quorum. During this unprecedentedly long stretch without a quorum, the MSPB has been unable to issue final rulings on thousands of federal employment cases, including whistleblower retaliation cases. As the MSPB’s lack of quorum passes the five year mark, whistleblower advocates are renewing calls for an immediate Senate vote on the nominees for the Board.
On October 6, the U.S. Senate Committee on Homeland Security & Governmental Affairs voted to advance President Biden’s three nominees for the Board: Cathy Harris, Raymond Limon, and Tristan Leavitt. A full Senate vote has yet to be scheduled, however, and the MSPB remains unfunctional.
“The failure to confirm these MSPB nominees is a huge disappointment,” said Siri Nelson, Executive Director of the National Whistleblower Center (NWC). “The MSBP is critical to government whistleblowers, and every day that the Board goes without quorum is a day Congress has failed the American people. If the Senate really cares about government oversight they will make it a priority to vote on these nominations right away.”
NWC issued an action alert calling on individuals to urge the U.S Senate to confirm the nominees immediately. Other whistleblower advocates have singled out Senate Majority Leader Chuck Schumer (D-NY) as the figure responsible for scheduling a vote on the nominees.
“The Senate majority leader needs to immediately schedule ‘floor time’ so the three highly qualified MSPB nominees can be voted on,” said whistleblower attorney Stephen M. Kohn of Kohn, Kohn & Colapinto. “They have all passed the Committee. An up or down vote is needed. The failure to schedule floor time to debate and vote is unacceptable, and every American concerned about oversight, accountability, and whistleblower protections should immediately contact the Senate Majority Leader Chuck Schumer. You can email Senator Schumer by clicking this link. You can call his office at this number: (202) 224-6542. I strongly suggest doing both!”
“The message is simple: The failure to schedule a vote for approving the members to the MSPB is a disgrace,” continued Kohn. “Thousands of whistleblowers have been denied their rights or are afraid to report fraud as they know the only board capable of protecting them cannot because the Senate will not hold a vote on its members. Please schedule a vote to confirm the MSPB members TODAY.”
The lack of quorum at the MSPB has undermined the whistleblower protection system for federal employees. MSPB professional staff referred to the lack of quorum as the MSPB’s “most dire crisis since it was established by the Civil Service Reform Act of 1978.” Unlike other federal agencies, the MSPB cannot be temporarily filled with “acting” members; thus, the Board has not ruled on a single federal whistleblower case for five years. This has created an immense backlog of cases pending before the Board. In January 2021, WNN reported that there was a backlog of 3118 cases. That number has unquestionably grown over the past year.
This backlog of MSPB cases is more than just an administrative nightmare. It has had an immeasurable toll on the whistleblowers awaiting resolution in their retaliation cases. Without a quorum to issue final rulings, federal whistleblowers seeking recourse for retaliation under the Whistleblower Protection Act 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.
For example, 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.
According to a Marist poll published by WNN, the American public overwhelmingly supports stronger protections for federal whistleblowers. 86% of American adults responded that they agree that there should be stronger legal protections from harm for whistleblowers who are federal employees. In this case, it is not even an issue of passing stronger legal protections. The Senate simply needs to act to ensure that the current legal protections function as designed.