Trump Monkey-Wrenches Whistleblower Protections
Collapse of Civil Service Court Risks Potential Personnel and Judicial Meltdowns
Washington, DC — The sole entity policing the federal merit system has been inoperative for months and will remain so for the foreseeable future. As a consequence, whistleblower and other personnel cases languish in limbo, and, if a major federal layoff occurs, appellate courts could be swamped by thousands of cases, according to Public Employees for Environmental Responsibility (PEER).
The U.S. Merit Systems Protection Board is a three-member presidentially-appointed, Senate-confirmed panel that sits atop the civil service court. The MSPB hears appeals of major personnel actions, such as terminations, taken against 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. Currently, more than 660 of these petitions for review are pending with no near-term prospects for resolution, some awaiting decisions since 2015.
President Trump has yet to even nominate any replacements. The seven-year term of the lone remaining Board member, Mark Robbins, expires at the end of March. At that point, the MSPB would have zero members and could take no action, however routine, such as granting temporary stays. This extraordinary vacuum has never occurred before, except for the lack of a quorum for a few weeks in 2003.
This situation effectively nullifies the Whistleblower Protection Act, which is enforced by the MSPB. For example, at an agency such as the Department of Veterans Affairs, which is notorious for its reprisals against employees reporting wrongdoing and dangerous conditions, a whistleblower facing firing may have little recourse. If the whistleblower wins a favorable initial decision from an MSPB administrative judge, the agency could void the effects of that victory merely by filing an appeal to the full MSPB where it would join the growing, seemingly interminable backlog – and during all of this the whistleblower would be off payroll.
“By its inaction, the Trump White House has not just removed the merit system cop from the beat, it has shuttered the entire police station,” stated PEER Senior Counsel Paula Dinerstein, noting that the only way for a whistleblower to obtain justice would be to receive an unfavorable initial decision which the agency does not appeal, and therefore becomes a final decision that can be appealed to a U.S. Court of Appeals. “The idea that a whistleblower must lose in order to obtain a possible win is not just perverse, it is plain nuts.”
Fiscal uncertainties and conflicts could result in thousands of government furloughs in the event of a shutdown or layoffs (called a Reduction-in-Force or RIF) if agency budgets are significantly cut. Employee challenges of either furloughs or RIFs would also run through the MSPB. For example, the 2013 government shutdown spawned 32,000 furlough appeals filed with MSPB. It took nearly three years to process them all. Should a major shutdown or RIF occur, it would produce nightmare scenarios of –
- Tens of thousands of RIF and furlough appeals compounding an already spiraling MSPB backlog;
- Thousands of these cases with initial decisions unfavorable to the employee that become final flooding the federal appellate court system; and
- If the MSPB vacancies are finally filled, those appointees will have to wade through years of old cases before being able to consider any new ones.
“In federal service, justice is being denied not just by being delayed but by being derailed,” added Dinerstein. “President Trump is not draining the swamp, he is clogging it.”
PEER today also unveiled a new legal web center on how RIFs work and how they can be challenged.
Read MSPB’s explanation of lack of quorum impacts
Visit the new PEER Reduction-in-Force” (RIF) legal web center