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.
As a result, most federal employees do not have the avenue for redress that some other federal employees, and all private sector workers, have. Federal employees cannot currently have their whistleblower cases heard in federal district court. That means that these employees cannot appeal to a court for justice. Only a single administrative law judge, or at most the three-person panel of the MSPB, can make a decision on their case.
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. In fact, legislative history as well as Congressional intent since the Founding Fathers instead demonstrates that Congress has always wanted to have special additional protections for federal employees, who are likely to blow the whistle on significant fraud and misconduct at the very heart of the federal government.
Further complicating the issue, the MSPB’s political nature is a drawback for whistleblowers. While the structure of the MSPB may be appropriate for handling the majority of its cases, which are simple civil service appeals that don’t raise political issues, it is not well equipped to handle whistleblower cases that can easily become politicized.
Two of the three Board members must be of the President’s own political party, and one of the three Board members must be of the opposing political party. With only three members in total, this is particularly fraught. Additionally, because the Board members are political appointees, there is a constant risk of a lack of any or sufficient appointees, in a particularly politically-polarized environment.
This is even more problematic when considering that the 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.
Currently, the MSPB has not had a quorum in over four years and has not had a single sitting member since May 2019. This has led to a backlog of over 3,100 cases.
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Finally, while the Office of Special Counsel (“OSC”) does have the ability to intervene on some cases, and give immediate if temporary relief, it only has the capacity to do so for an estimated 10% of pleas it receives and is not structured to be a substantial alternative to the MSPB.
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.
As noted by NWC Board Chairman and whistleblower law expert Stephen M. Kohn,
“Without court access, federal employee whistleblower rights are non-existent. The MSPB administrative process, even before the current crisis brought on by the lack of quorum, was criticized by every major whistleblower advocacy group in the nation. Now with the lack of quorum and year-long backlog, the broken system is simply not fixable. Federal employee whistleblowers need what other whistleblower laws provide, access to federal court and independent judges.”
Even once the quorum on the MSPB is restored, through the nomination of new Board members and their approval by the Senate, the problem will not be solved. MSPB terms are only seven years, raising the specter of a repeat of the 2017 to 2021 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.
There Already Exists Significant Support for This Reform
The campaign to allow federal employee whistleblowers access to federal court and jury trials has long seen widespread, bipartisan support.
As our General Counsel David Colapinto testified to the House Oversight Subcommittee on Government Relations in January 2020, there is clear historical support – both in Congress and in the public – for this measure.
For example, in 2008, the House of Representatives overwhelmingly endorsed H.R. 985, an amendment for federal court access for all federal employees. The bill had the support of a majority of all Democrats and a majority of all Republicans.
Then, on May 14, 2009, a total of 292 public interest organizations and corporations published an open letter to then-President Obama and Members of Congress in support of what the group termed “swift action to restore strong, comprehensive whistleblower rights.” The very first item on the list was to “[g]rant employees the right to jury trial in federal court.” The letter noted,
Whistleblower protection is a foundation for any change in which the public can believe. It does not matter whether the issue is economic recovery, prescription drug safety, environmental protection, infrastructure spending, national health insurance, or foreign policy. We need conscientious public servants willing and able to call attention to waste, fraud and abuse on behalf of taxpayers.
The letter also noted the systemic problems of the MSPB.
Also in 2009, committees within both the U.S. House of Representatives and U.S. Senate held a hearing about the issue regarding bills H.R. 1507 and S. 372 respectively, which both proposed reforms related to federal court access for federal employees.
“Full court access, including the right to a trial by jury, is the cornerstone of the…reforms.”
-National Whistleblower Center’s 2009 testimony
The 2009 testimony supporting federal court access from leading academic Robert Vaughn and groups involved with advocating for whistleblowers including the Government Accountability Project, Public Citizen, and the National Whistleblower Center can be found here and here.
As part of his 2020 testimony, Colapinto also submitted a special report on behalf of NWC on permitting federal employees to have their whistleblower cases heard in federal court. The report reflects on these past demonstrations of support as well as addresses concerns that such reforms would create a burden on the federal court system.
This advocacy benefits from broad public support for protecting whistleblowers who expose fraud in government programs. An October 2020 poll from the Whistleblower News Network demonstrates the desire to protect whistleblowers – in the public and private sector – spans across political parties, with Democrats, Republicans, and Independents all favoring stronger protections for whistleblowers and Congress making whistleblower protection laws a priority.
Additional Reforms for the MSPB and Federal Employee Whistleblowers
The problems of the MSPB have demonstrated that it is ripe for several specific and technical reforms which will best protect whistleblowers and implement the original and longstanding intent of Congress. Below are additional reforms that the National Whistleblower Center, in collaboration with other whistleblower advocacy groups such as the Government Accountability Project and the Project on Government Oversight, support. This includes not only access to jury trials, but also:
- Closing the loophole of retaliatory investigations;
- Providing temporary relief to whistleblowers facing reprisal;
- Covering non-career executive service federal employees;
- Prohibition on attorney fee waivers as a condition for settlement awards;
- Attorney fees for judicial review; and
- Making whistleblowers genuinely whole at the resolution of their case.