The Merit Systems Protection Board (MSPB) is one step closer to regaining a quorum. On September 22, the U.S. Senate Committee on Homeland Security & Governmental Affairs will hold a hearing on President Biden’s three nominees for the MSPB. This is 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 it is the three-member Board which 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 cases at the MSPB. At the beginning of 2021, there was a backlog of 3118 federal employee cases at the agency, according to exclusive reporting by WNN. Of these, 774 were whistleblower retaliation cases. Hundreds of whistleblowers have thus been left in legal limbo, unable to obtain relief after facing retaliation for their whistle blowing. For the most part, federal employee whistleblowers do not have access to federal court trials and the MSPB is their sole avenue for relief.
Dr. Toni Savage is one such whistleblower who has been left suffering without relief for years because of the MSPB’s lack of a quorum. Dr. Savage 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.
Cathy Harris is President Biden’s nominee to be the Chair of the MSPB. Harris is currently co-manager of the firm Kator, Parks, Weiser & Harris (KPWH) and serves as the Chair of KPWH’s Sexual Harassment and Sexual Orientation, Transgender, and LGBT Practice sections. She has experience representing federal employees individually and in class action lawsuits. In 2018, Harris secured a hold on a proposed suspension of a federal whistleblower at the Department of Education who blew the whistle regarding the Trump administration’s 2018 budget proposal.
Raymond Limon is nominated to be the Vice Chair of the MSPB. Limon is the Deputy Assistant Secretary for Human Capital and Diversity, and Chief Human Capital Officer at the Department of the Interior. Previously, he was an attorney at the U.S. Office of Personnel Management Office of General Counsel where he specialized in employment litigation and policy review.
Tristan Leavitt is the third nominee for the MSPB. Leavitt currently serves as the general counsel of the MSPB. Furthermore, due to the absence of any Board members, Leavitt has led the MSPB since March 1, 2019 as its acting chief executive and administrative officer. Leavitt previously worked for the Office of Special Counsel (OSC) as the Principal Deputy Special Counsel. In 2018, he spoke at National Whistleblower Day about working with whistleblowers at the OSC.
The Senate Committee hearing on the nominations is scheduled for 10:30 am EDT. Following the hearing, the Committee must schedule a vote on the nominations. If the Committee votes to approve the nominations, then the Senate as a whole will hold a vote.
Watch the Hearing on September 22 at 10:30am EDT: