Most federal employees who are retaliated against for speaking up and blowing the whistle have just a single avenue to find justice: the Merit Systems Protection Board (MSPB). The MSPB, whose three Board members are appointed by the President and confirmed by the Senate, reviews the whistleblower cases of federal employees, and makes the final determination.
Currently, the MSPB has not had a quorum in over four years, the longest period in the board’s history, and has not had a single sitting member since May 2019.
MSPB cannot make any decisions on cases without a quorum. Whistleblower cases can, and have, sat for years without any resolution; in the meantime, supervisors feel empowered to retaliate against whistleblowers knowing that they will have no substantive redress.
Given this historic absence of members, there is an ever-growing backlog of cases. In January 2020, it was at over 2,500 cases. A year later, that number has grown by almost a quarter.
The independent online newspaper Whistleblower Network News recently confirmed after a Freedom of Information Act (FOIA) request that, as of January 28, 2021, there is a backlog of 3,118 federal employee cases at the Board. 774 of these are whistleblower retaliation cases.
There is no justification for continuing with this inadequate system. Legislative history strongly suggests that while Congress intended a unique avenue for federal employees, it certainly did not intend for federal employees to be left stranded without adequate whistleblower protection.
Even once the quorum on the MSPB is restored, the problem will not be solved. MSPB terms are only seven years, raising the specter of a repeat of the current problem for years to come. Additionally, the built-in inefficiencies and problems of the MSPB will continue to fester. And finally, the backlog of over 3,100 cases will take the Board years to work through if they give each case due process under law, even as more cases continue to come in.
In response to these issues, the National Whistleblower Center (NWC) has launched a grassroots campaign to demand that Congress pass legislation to permit federal employee whistleblowers to file their cases in federal district court.
This push has gained widespread support by a broad coalition of whistleblower advocates and policy makers who understand the need for real reform on this particular issue. Learn more about our campaign to gain court access for federal whistleblowers here.