Merit Systems Protection Board

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.  Continue Reading Yet another try to confirm MSPB board nominees. Then, on to a 2,000 case backlog.

Washington, D.C. September 8, 2015. In a precedent setting decision, Savage v. Department of the Army, 2015 M.S.B.P. 51 (Sept. 3, 2015), the Merit Systems Protection Board (MSPB) ruled that the creation of a hostile work environment standing alone violates the Whistleblower Protection Act (WPA). The WPA provides protection to federal workers who blow the whistle on fraud within the federal government.   Continue Reading MSPB Rules Creation of Hostile Work Environment Violates WPA

 "Hundreds of Thousands" of Federal Employees Lose Civil Service Rights

Washington, D.C. August 20, 2013. The U.S. Court of Appeals for the Federal Circuit issued a ruling today potentially stripping "hundreds of thousands" of federal employees rights under civil service law.  The ruling, in Kaplan v. Conyers, held that federal workers in "sensitive" positions could be unilaterally stripped of their civil service rights, at the "discretion" of their employing agency.  

The dissenting opinion by Appeals Court Judge Dyk, summarized the draconian impact of the ruling:

The majority opinion upholds sweeping claims by the Department of Defense (“DoD”) that it may take adverse actions against non-critical sensitive employees without review by the Merit Systems Protection Board (“MSPB” or “Board”). The effect is to effectively deny MSPB review for hundreds of thousands of federal employees—a number that is likely to increase as more positions are designated as non-critical sensitive. In my view, the DoD has acted without authority from either the President or Congress, and contrary to the Civil Service Reform Act of 1978.

Stephen M. Kohn, Executive Director of the National Whistleblower Center, issued the following statement:

"This is an unprecedented setback for government accountability and oversight.  The Appeals Court has permitted executive agencies to blacklist or fire employees who, by law, are covered under the Civil Service Reform Act.  That law was designed to protect federal employees who report "waste fraud and abuse" through lawful channels and was also designed to ensure that the federal workforce was free from discrimination, unlawful patronage and retaliatory actions.  Instead, agencies such as the Department of Defense can simply claim that an employee occupies a "sensitive" position, strip them of their civil service rights and fire them without regard to civil service protections.

This decision reinforces the fact that President Obama’s claims that federal employees or contractors like Mr. Snowden have effective channels to raise concerns and protect their jobs are simply not true.  The White House and the national security agencies it defends have worked overtime to expand the power of the executive to fire workers who dare to raise concerns about misconduct or corruption."

A copy of the decision is linked here.  

For more information contact Mary Jane Wilmoth,

Today the National Whistleblower Center filed an Amicus Curiae brief with the Merit Systems Protection Board (MSPB), in the case of Day v. Department of Homeland Security. At issue is whether the new definition of a protected disclosure set forth in the Whistleblower Protection Enhancement Act will apply to cases pending and/or which arose before that law was passed. The MSPB requested stakeholders to file briefs on the issue.

In its brief, the NWC strongly urged the MSPB to retroactively apply the WPEA’s definition of protected disclosure to all pending cases. The MSPB’s decision will impact the fate of federal employees and whistleblowers that filed claims or suffered retaliation before the WEPA was signed into law on November 27, 2012.

Continue Reading MSPB Urged to Retroactively Apply WEPA

Today, the National Whistleblowers Center and the No FEAR Coalition announced their support for the immediate passage of the Whistleblower Protection Enhancement Act (WPEA) for federal employee whistleblowers.  The decision to support the Senate version (S. 743) of the WPEA came after the Senate removed a final poison pill from the bill. 

Last week, the Senate removed the controversial summary judgment provision from the WPEA. The provision would have given the Administrative Judges of the Merit Systems Protection Board (MSPB) the power to summarily dismiss whistleblower cases without a hearing. The NWC, No FEAR Coalition and other whistleblower groups argued that the summary judgment provision would be harmful to federal employees by radically increasing costs for whistleblowers, undermining their ability to reach settlements, and delaying final decisions. A prior blog posting provides a more thorough analysis of the dangers of the summary judgment provision.

Stephen M. Kohn, Executive Director of the National Whistleblowers Center, acknowledged that "the revised Senate bill (S. 743) is far from what federal employees were promised, but it is finally a step forward." He encouraged Congress to immediately pass the WPEA and promised that the NWC would continue working to improve protections for all federal employee whistleblowers. 

Dr. Marsha Coleman-Adebayo, President of the No FEAR Coalition and member of the NWC Board of Directors, stated that the "summary judgment provisions of Senate bill (S.743) would have seriously undermined the due process provisions of the 1964 Civil Rights Act."  Dr. Coleman-Adebayo explained, "The MSPB has a long history of victimizing federal employees who seek justice by ruling nearly 97% in favor of federal agencies" and that giving MSPS summary judgment "would have been the death nail for any semblance of justice." She urged civil rights and whistleblower groups to support the WPEA and continue working together to improve federal employee whistleblower protections.   

For more information about the legislative history of the Whistleblower Protection Enhancement Act please read the NWC’s position statement

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The Senate’s Oversight of Government Management Subcommittee (part of the Homeland Security and Governmental Affairs Committee) will hold a confirmation hearing for two members of the Merit Systems Protection Board (MSPB) on Tuesday, October 20, 2009, starting at 2:30 pm Eastern time. The hearing will be in Room 342 of the Dirksen Senate Office Building and broadcast on the internet. The subcommittee will hear testimony from the nominees, Susan Grundmann (to be Chairman) and Anne Wagner (to be Member).

Alert observers may look for the nominees’ responses to questions about the effectiveness of whistleblower remedies currently available through MSPB, how the nominees might use the power provided by 5 U.S.C. §1204(a)(3) to conduct studies on whether the protections are adequate, and how MSPB could apply 5 U.S.C. §1214(g) to provide remedies for federal employee whistleblowers. The nominees might also face questions about MSPB’s standards for orders staying a reprisal in Individual Right of Action (IRA) cases under 5 U.S.C. §1221(c).  The current MSPB regulation at 5 CFR §1209.10(b)(3) requires a showing of "substantial likelihood" whereas the standard under 5 CFR §1201.134(a) only requires a "reasonable grounds to believe" for requests made by the Office of Special Counsel (OSC).  Finally, there might be some discussion of the pending Whistleblower Protection Enhancement Act (WPEA), and how MSPB might respond to proposals made in various versions of that bill.