On September 22, the U.S. Senate Committee on Homeland Security & Governmental Affairs held a hearing on President Biden’s three nominees for the Merit Systems Protection Board (MSPB). This was the first step in the procedure of confirming presidential nominees. If the Senate confirms the nominees, the MSPB will have a quorum for the first time since January 8, 2017.
The lack of a quorum at the MSPB has been catastrophic for federal employee whistleblowers. The MSPB oversees all federal employee whistleblower retaliation cases, and the three-member Board issues final rulings on these cases. 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. This has led to a massive backlog of thousands of cases at the MSPB.
At the hearing, the nominees discussed ideas to deal with the backlog as well as ways to help promote whistleblowing within the federal workforce. Whistleblower advocates are calling for a quick confirmation process of the nominees following the hearing. The National Whistleblower Center released an action alert requesting that individuals “urge the U.S Senate Committee on Homeland Security & Government Affairs to advance the nominees immediately.”
“The confirmation process has whistleblower advocates on pins and needles,” said NWC Executive Director Siri Nelson. “The MSPB needs quorum to be operational, and the major function it serves is processing whistleblower claims – and there is a massive backlog. We are eager to see these nominees confirmed. No nominee is perfect, and these days we can always find grounds to disparage one’s character or question their commitments. However, one thing is known for sure, and that is that there are thousands of whistleblowers who have waited for justice for far too long – and the only thing that can remedy this are MSPB confirmations. Congress should focus on these aggrieved civil servants and act quickly to get the MSPB back up and running.”
The nominees featured at the hearing were Cathy Harris, currently co-manager of the firm Kator, Parks, Weiser & Harris (KPWH), Raymond Limon, the current Deputy Assistant Secretary for Human Capital and Diversity and Chief Human Capital Officer at the Department of the Interior, and Tristan Leavitt, the current general counsel of the MSPB. Harris is nominated to be the Chair of the MSPB, and Limon is nominated to be the Vice Chair. The Senate hearing was run by Committee Chairman Senator Gary Peters (D-MI) and Ranking Member Senator Rob Portman (R-OH).
In his opening statement, Peters noted the importance of reestablishing a quorum at the MSPB, referring to it as “a crucial step towards preserving the rights of federal employees and protecting whistleblowers from retaliation.” In his opening statement, Portman highlighted the MSPB’s importance in the whistleblower protection process. “Not only does the Board adjudicate retaliation claims under the Whistleblower Protection Act,” he explained, “but the Board also has the power to study and report to Congress on existing whistleblower protection issues and ways to improve these protections through law.”
At the beginning of the hearing, Senator Chuck Grassely (R-IA), the longtime Congressional champion of whistleblowers, introduced Leavitt to the committee. Grassley claimed that Leavitt “is a perfect choice and perfect fit” for the MSPB. Grassley highlighted the time Leavitt spent on his Senate staff. He noted that Leavitt helped draft the first resolution recognizing National Whistleblower Appreciation Day and played a key role in the creation of the Senate Whistleblower Protection Caucus.
“Perhaps most important,” Grassley stated, “Tristan has spent thousands of hours working with hundreds of whistleblowers who risked their livelihoods trying to make the government work the way it is supposed to.”
Following Senator Grassley’s ringing endorsement of Leavitt, each of the three nominees delivered their opening remarks.
In her testimony, Harris recounted her decades-long experience litigating on behalf of both federal employees and agencies before the MSPB. “Through this experience, I have gained a deep understanding of federal-sector employment law and the great importance of our merit system in enhancing and improving the federal workforce,” Harris said. “Having the experience of representing a wide range of employees and management from large and small agencies, I have developed a balanced view of the issues facing the civil service.”
In his testimony, Leavitt expressed his deep commitment to whistleblower protection. “Anyone who knows me might perhaps know me best for being passionate about the importance of protecting whistleblowers,” he stated. “To me, protecting whistleblowers is without question the best way to root out waste, fraud, and abuse in the federal government, or identify other problems that pose a risk to the health and safety of the American public.”
Lastly, Limon spoke during his testimony about his life of public service. “The common thread running through my career has been my whole-hearted commitment to public service,” he said. “In looking back at my career, I want to keep the call to public service stronger than ever, thus that is why I’m committed to promoting and protecting the merit system principles.”
Following the nominees’ testimonies, Chairman Peters asked them a series of questions. One major topic of discussion was the immense backlog facing the Board. As reported by WNN, at the beginning of 2021, there was a backlog of 3118 federal employee cases at the agency. Of these, 774 were whistleblower retaliation cases. Peters asked the nominees how they would handle this backlog “without sacrificing the quality of the decisions.”
All the nominees noted that properly handling the backlog is a top priority, and each noted that MSPB staff have been working hard in preparation for when the Board regains functionality. Harris stated that she would recommend instituting a triage system to help ensure the most important cases are handled quickly and would also recommend instituting “short form decisions” where the Board affirms or denies administrative rulings without lengthy reasoning explaining why.
Another topic of discussion was whistleblowing and what Senator Portman referred to as “barriers to federal employees making disclosures.” The nominees pointed to cultural shifts about whistleblowing and training about whistleblower rights and procedures as key ways to remove some barriers. Leavitt stated that “taking those [whistleblower protection] laws, applying them fairly, and just making sure the tools that are there to protect whistleblowers are used fairly is really an important role that the Board can fulfill” to help shift the culture around whistleblowing. Harris added that “training managers and senior staff to understand what they need to do when complaints come in is really important.”
Next in the confirmation process, the Senate Committee on Homeland Security & Governmental Affairs must schedule a vote. If the Committee votes to approve the nominations, then the Senate as a whole will hold a vote.
Members of the Senate Committee did not respond to requests for comment on when a vote will be held and whether or not they will support the nominees.
Watch the Hearing: Hearings | Homeland Security & Governmental Affairs Committee