Problems at the U.S. Merit System Protection Board (MSPB), recently highlighted by CBS News’ 60 Minutes, are only part of the problem with the troubled federal agency. The 60 Minutes report focused on the Board’s lack of quorum since January 2017, and that it is now completely vacant on account of a nomination holdup in the Senate.
The MSPB is the sole venue to adjudicate whistleblower complaints and anti-retaliation claims brought by federal employees. In its current state, whistleblower claims are in limbo, and the federal government is missing its key defense against corruption in the federal government.
A recent article about the Board argues that, even if it were “fully functional, the MSPB is plagued by structural issues that make it entirely inadequate for assessing whistleblower tips and weeding out the fraudulent activity and personnel that inspire their complaints.” Noting that only three percent of federal employees win cases before the MSPB.
The structural defect inherent in the Board is that it is politicized as it must have three members appointed by the President, not more than two of whom may be adherents of the same political party. “A federal whistleblower is at a huge disadvantage when it comes to enjoying their constitutionally guaranteed right to due process. Instead, federal employees’ claims, and often their livelihoods, are left to the whims of a single administrative law judge or the three-person panel MSPB.
The author argues granting federal whistleblowers access to justice in federal court would fix this defect.