All three position on the Merit Systems Protection Board (MSPB) are now empty with the expiration of the only member’s appointment. In February, the Senate Homeland Security and Governmental Affairs Committee approved two of President Trump’s MSPB nominees, but the full Senate has not considered them yet.
A letter from groups representing federal workers, as well as whistleblower and taxpayer advocates, raised concerns about the future of the board.
The MSPB is a three-person board which hears appeals of lower level personnel decisions. The Board hears whistleblower cases and is the backstop for maintaining a non-partisan, professional civil service as the sole enforcement body on many cases. It has not had a quorum since just before President Trump took office. The MSPB needs a quorum of two to act. The term of the single sitting member, Mark A. Robbins, ended on February 28.
A Washington Post column about unfilled political position mentions the MSPB.
The MSPB has a vital mission, namely, to oversee federal hiring, employee management and firing, as well as to provide protection against whistleblower retaliation in government. Perhaps the most invisible force at work at the MSPB is upholding the constitutional legal principles of due process and checks and balances that apply across all three branches of government. That makes the work of the MSPB crucial to making democracy work across the U.S. government. Davidson.
As of January 31, 2019, the office reported nearly 2,000 cases pending review and another 1,600 waiting for board action. On Jan 31, 2017, the agency had 557 pending review and 63 waiting for board action. A statement released with agency’s 2018 annual report notes that the “most significant issue facing MSPB is the lack of a quorum that began on January 8, 2017, which prevents MSPB from issuing decisions on petitions for review (PFRs) and other cases at headquarters, and from issuing reports of merit systems studies. Therefore, the FY 2018 Annual Report does not contain case processing statistics for headquarters cases (except for actions taken on requests for stays). Nor does the Report contain summaries of significant Board decisions or of merit systems study reports because none were issued in FY 2018.”
In one case Kim Farrington, an aviation safety inspector for the Federal Aviation Administration (FAA), has been waiting for a resolution for over nine years. Farrington says she was harassed and fired for exposing safety concerns. In another case, Toni Savage, an officer with the Army Corps of Engineers, reported fraud involving millions of taxpayer dollars. Her case remains stuck in legal limbo.
Advocates, including the National Whistleblower Center, Project on Government Oversight, Taxpayers Protection Alliance consider the current situation untenable. They call for ensuring the MSPB has a quorum of board members who agree that whistleblowers are crucial for the continued protection of the professional civil service.