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Washington, DC June 19, 2018 – The Whistleblower Protection Act and other federal merit system laws have become dead letters because the sole entity with enforcement power has been inoperative for months and will remain so for the foreseeable future. More than one thousand cases have piled up in limbo as the civil service court does not have enough confirmed presidential appointees to render any decisions, according to documents posted by Public Employees for Environmental Responsibility (PEER).
The U.S. Merit Systems Protection Board is a three-member presidentially-appointed, Senate-confirmed panel that hears appeals of major personnel actions taken against and complaints lodged by federal employees. Since January 7, 2017, however, the MSPB has been left with only one member, causing the absence of a quorum, which prevents it from deciding any appeals.
As of May 10, 2018, MSPB tallied 1,111 cases awaiting Board vote, with some decisions pending since 2014. Of these, 216 are whistleblower cases, among hundreds of other cases involving discrimination complaints, terminations, adverse actions, and other personnel actions. There are hundreds more cases in the pipeline being readied to join this ever-growing backlog.
The seven-year term of the lone remaining Board member, Mark Robbins, expired on March 1. He may remain for a year unless replaced sooner. On March 12, President Trump nominated two MSPB members:
Andrew Maunz and Dennis Dean Kirk. But Maunz is nominated to replace Robbins, thereby voiding all the internal votes and opinions Robbins has supposedly been preparing for the past 18 months. Neither nominee has even an initial Senate hearing date, meaning that this legal impasse will be prolonged.
“Through its inattention, the Trump White House has caused a merit system train-wreck in which whistleblower protections and other safeguards are functionally nullified,” stated PEER Senior Counsel Paula Dinerstein, noting even if a whistleblower wins an initial decision from an MSPB administrative judge finding illegal retaliation, an agency appeal to the full MSPB throws that victory into indefinite abeyance. “If justice delayed is justice denied, federal service is suffering an injustice epidemic.”
At the same time, the Trump administration is taking actions making this bad situation worse. On March 25, he signed an Executive Order to speed up adverse actions and discourage settlements, forcing more cases into litigation before a moribund MSPB. In addition, any Trump plans to reshape the federal workforce, using tools such as a Reduction-in-Force or RIF, will ultimately require MSPB review. If these MSPB vacancies are finally filled, those appointees will have to wade through years of old cases before being able to consider any new ones.
“President Trump is not draining the swamp, he is clogging it,” added Dinerstein, pointing out that unlike the private sector, government employees have statutory due process rights. “Federal service cannot be run like an episode of Celebrity Apprentice with a ‘You’re Fired’ edict wrapped up before the commercial break.”
PEER has also unveiled a legal web-center on how RIFs work and how they can be challenged.