The Whistleblower Protection Act is Dead
The Whistleblower Protection Act is dead – not because it was repealed, but because it was asphyxiated.
The choke point is a little-known agency named the Merit Systems Protection Board, or the MSPB, which is, in essence, the federal civil service court system. Protecting civil servant whistleblowers from retaliation or restoring them to their former positions generally requires an order from the MSPB.
The Board has issued no such orders since 2016, as the MSPB has been the victim of a total bureaucratic train wreck. The three MSPB Board Members (no more than two from either party) are Senate-confirmed, presidentially-appointed positions. It requires two Board Members for a quorum needed to make final rulings.
Unfortunately, the MSPB has not had a quorum since January 2017 and the lone Board member left in 2019. Since then, the MSPB has remained an empty vessel. The number of backlogged, undecided cases now approaches 3,000. If the Board slots are ever filled, it will take the revived MSPB two to three years to work though this current backlog before it gets around to deciding new cases.
The trouble does not end there. Actual hearings of employee challenges are conducted by a cadre of approximately 85 administrative judges. Their initial decisions may be appealed to the full Board, where they join the growing heap of backlogged appeals. However, these hearings allow cases to move forward – and, if there is no appeal, these initial decisions become final.
Yet, even this work is in jeopardy. These MSPB judges (technically “attorney-advisors”) are selected through a merit-based competitive process (as one would expect from an agency with “Merit System” in its name).
But a 2018 Supreme Court decision found that administrative law judges working for the Securities and Exchange Commission are subject to the constitutional “Appointments Clause” and must be appointed directly by the Executive Branch, rather than hired through a competitive process. There is pending litigation seeking a court ruling on whether this decision also applies to MSPB judges.
Meanwhile, agencies are beginning to challenge the authority of MSPB judges to second-guess their personnel decisions and judges are starting to dismiss these cases “without prejudice” – meaning they can be refiled once this matter is settled.
Yet, in the court case attempting to settle the issue, the Trump administration is arguing that the court cannot decide the case because there was no final decision by the MSPB – only a dismissal without prejudice by the administrative judge. If this argument wins, the issue will never be settled until the Board is re-populated, and meanwhile employees cannot even get their first stage hearings, let alone a final decision.
While there is an entity called the Office of Special Counsel, which has whistleblower jurisdiction, the OSC is like a prosecutor and needs a court order – in this case, from the MSPB – before it can obtain stays or other remedial action. So, cases before the OSC are like cars sitting in the cell phone parking lot at an airport, except that no planes are landing.
Nonetheless, the number of federal employees who find themselves in whistleblower situations has not diminished. In assisting public servants in trouble, PEER –
- Helps steer these embattled employees away from the broken civil service system. While we defend whistleblowers, PEER’s philosophy is to do everything we can to help public servants stay away from whistleblower litigation. Rather than bringing a personnel action, we have found (when possible) it is almost always more effective to wage war on the underlying issue of agency wrongdoing – a subject beyond the jurisdiction of the MSPB, which can only address personnel issues.
- Looks to see whether other whistleblower protections, such as those embedded in some pollution and public health laws, are applicable. Depending upon the case, it may be possible to sue for relief while avoiding the MSPB quagmire altogether.
- Provides pro bono legal assistance and representation. In other words, we do not charge for our services. Private attorneys can be very expensive, and we see employees paying tens of thousands of dollars even when their cases are going nowhere. Moreover, even before these latest hurdles, this type of litigation can take years. It is hard to afford at the law firm’s hourly rate – particularly if you no longer have a salary.
Needless to elaborate, these are especially perilous times for federal employees, and seemingly becoming more so with each passing week. We could use your help both now and – when the skies clear – in resurrecting a truly merit-based system of public service.
Jeff Ruch is the Director of PEER’s Pacific office, having formerly served 22 years as the Executive Director of PEER.
Paula Dinerstein is PEER’s General Counsel and represents PEER in whistleblower, environmental and FOIA cases.
