The persistence of two vacancies on the three-member Merit Systems Protection Board worries whistleblowers and their advocates who are concerned that statutory protections are not being enforced.
Since chairwoman Susan Tsui Grundmann resigned in January, the MSPB has been guided by Obama administration appointee Mark Robbins, whom President Trump elevated to vice chairman on Jan. 23, leaving two vacancies.
As the MSPB website currently explains, “any member of the board” may grant or deny a 45-calendar-day stay of a personnel action requested by the Office of Special Counsel. Thus, Vice Chairman Robbins can continue to issue initial stay requests of 45 calendar days. However, because Title 5, Section 1214 of the U.S. Code requires that “[t]he board may extend the period of any stay granted …a quorum must be present for the board to consider OSC’s request for an extension of an initial stay.”
» Get the best federal news and ideas delivered right to your inbox. Sign up here.
A board spokesman declined to comment further to Government Executive. The MSPB’s fiscal 2016 annual report cited 24 whistleblower cases dealt with last year, including a half-dozen that merited a detailed write-up.
The Trump White House has not tipped its hand on whom it might nominate to the two slots, and did not respond to inquiries by publication time.
Whistleblower specialists to varying degrees sounded alarmed. The Office of Special Counsel reiterated in a statement that “without a quorum, OSC cannot seek extensions of formal stays (beyond an initial 45 day period). OSC also cannot ask for MSPB review of initial decisions. Similarly, whistleblowers exercising an individual right of action will not be able to appeal initial decisions by administrative judges to the board. This will negatively impact whistleblowers and the development of the whistleblower law until a quorum is restored,” it said. “Whistleblowers, veterans, and other federal workers with pending appeals likewise may not receive relief until a quorum is established.” (MSPB stressed that whistleblowers may still file for an appeal, but the board cannot act on it until they have a quorum.)
Tom Devine, legal director for the Government Accountability Project, has been monitoring the Trump team’s moves on whistleblowers. “The full MSPB board has been an essential check on rogue administrative judges, who are often more hostile to whistleblowers than the federal appeals courts,” he said. “Without that full board, the pressure to conform with statutory boundaries will vanish.”
Devine also said canceling the availability of interim relief for whistleblowers pursuing cases “is the most destructive single development that can happen to the Whistleblower Protection Act. Without that relief, agencies drag out cases. It’s a blank check to starve out whistleblowers who can’t wait for years for a victory.”
The backlog and delays hit home with Robert MacLean, the terminated (and since reinstated) Transportation Security Administration air marshal who won a key whistleblower case in the Supreme Court.
“Already, regional MSPB administrative judges are taking up to two-and-a-half years to issue decisions,” MacLean said. “My case is taking over 11 years to litigate and it is still being decided by a judge regarding the fact TSA refuses to give me a single promotion. TSA's total disregard of the Supreme Court's decision forced me to wipe out my Thrift Savings Plan 401(k) in order to pay off the taxes on my back payment that TSA lumped all into one tax year,” he added. “I'm also in the process of filing bankruptcy.”
Devine hopes Congress would “respect its own standards for enforcement of the WEPA, and would be equally responsible for the dysfunction if it doesn’t even staff the agencies that enforce the protections.”
Also suggesting that Congress intervene is Steve Katz, who served as chief counsel to MSPB from 1993-1997 and was previously counsel to the Senate panel on governmental affairs. Congressional committees “should act quickly to propose a narrow amendment that creates authority for MSPB to issue extensions without a majority,” he told Government Executive, cautioning that the language is tricky because a 1-1 tie on the board could also be portrayed as a lack of a majority.
“The amendment ought to specify that the option of a 45-day extension is triggered automatically by the absence of sufficient presidentially appointed members,” he said. The whistleblowers filing cases “are real live people, some of them managers, who want a resolution. Nobody on either side likes the uncertainty.”
CLARIFICATION: This story has been updated to clarify that whistleblowers may still file for an appeal, but the merit board cannot act on it until they have a quorum.