Advocates urge Senate to vote on nominees for board reviewing whistleblower claims

Good governance groups are urging Senate leaders of both parties to revive the now-defunct board that reviews whistleblower claims by filling vacancies that have left it without a quorum since 2017.

The Merit Systems Protection Board has been entirely vacant since 2019, leaving the board accruing a backlog of over 3,500 cases.

The board is viewed as a key protection of the civil service, reviewing cases of government employees that are challenging their termination, including those that have filed for whistleblower protection after flagging waste, fraud and abuse.

“We urge you to go beyond these abstract descriptions to consider the devastating impact on people’s livelihoods and careers, as well as the corrosive toll on the public interest and the public purse. Behind these cases are individuals and their families desperately seeking legal relief, often from reprisal like job termination and loss of income after they patriotically sought to expose governmental waste or wrongdoing at great personal and professional risk to themselves,” the groups wrote in a letter spearheaded by the American Civil Liberties Union and signed by 15 other groups.

The Senate Homeland and Governmental Affairs Committee has forwarded nominees to fill the board’s three slots. But the nominees have yet to advance to the floor for a vote by the full Senate.

Biden nominated two Democrats to the board earlier this year, filling out the trio of nominations in September with a Republican nominee — something the groups hoped would spur Republican interest in acting on the nominations.

Still at a hearing in October, several Republicans voiced concern over Biden’s nominee to serve as the chair, Cathy Harris, complaining about her past tweets about conservatives.

“We have to treat each federal employee that comes before MSPB the same and through her very partisan statements, Ms. Harris has generated doubt as to whether she can meet that standard,” Ranking Member Rob Portman (R-Ohio) said at the business meeting, according to Government Executive. 

Pressure to take a vote on the nominees has been growing, with a coalition of more than a dozen government employee unions penning a similar letter to Senate leaders Tuesday.

“No senator that claims to be protecting taxpayers can do so without protecting whistleblowers,” said Tom Devine, legal director at the Government Accountability Project which also signed the Wednesday letter. “This is inexcusable.”

The yearslong delay (replacement nominees made during the Obama and Trump era also failed to advance) means cases have been stuck in limbo. Either an employee or agency can appeal a decision to a board, so even whistleblowers who have already been deemed to have meritorious claims can be left out of work.

“Paralysis on the board is even creating perverse incentives for federal agencies to appeal the most meritorious whistleblower claims that won in earlier stages to the full board, knowing that those claims will then be forced to sit unresolved. Furthermore, the longer that federal employees’ merits system cases are forced to wait for resolution, the larger the back pay ordered to be paid could be to federal employees with wrongful termination or demotion claims,” the groups wrote.