On September 2, President Biden announced his intention to appoint Tristan Leavitt to the Merit Systems Protection Board (MSPB). The Council oversees federal employee whistleblower cases and has not reached a quorum for more than four years, leaving thousands of federal employees in a legal limbo.
Leavitt is currently the General Counsel of the MSPB. Additionally, due to the lack of Senate-confirmed board members, Leavitt “has also been leading the agency since March 1, 2019 as acting chief executive and executive director,” according to the press release from the White House. His previous experience includes working in the Office of the Special Advisor and on the staff of the Senate Judicial Committee for Senator Chuck Grassley (R-IA).
Biden had previously appointed Cathy Harris president of the MSPB and Raymond Limon vice-president. The Senate Committee on Homeland Security and Government Affairs is responsible for holding hearings on the three appointments, although none have been scheduled. The Senate must confirm the presidential candidates for a quorum in the Council to be established and for the MSPB to resume its functions.
The three-member MSPB makes final decisions on whistleblower retaliation cases under the Whistleblower Protection Act (WPA), the primary law protecting federal employees who report fraud, abuse and mismanagement within from the federal government. The board of directors has been deprived of the two members necessary for a quorum since January 8, 2017 and has had no single member since March 1, 2019. This is by far the longest period without a quorum in the history of the MSPB.
Unlike other federal agencies, the MSPB cannot function with “interim” members replacing political candidates. Thus, due to a lack of quorum, the MSPB has not rendered a final decision on a single case for more than four years. In January, WNN published an exclusive story revealing that there was a backlog of 3,118 federal employee cases at the MSPB as of early 2021. Of these, 774 were whistleblower retaliation cases. These statistics were provided by the MSPB in response to WNN’s request for the Freedom of Information Act (FOIA) and the number of retaliatory cases of whistleblowers left unattended can only have increased in recent months.
Even when the MSPB finally has quorum again, it can take years to overcome this backlog. And this backlog of MSPB cases is more than just an administrative nightmare. Without a quorum to make final decisions, federal whistleblowers seeking retaliation under the WPA are stuck in a legal limbo. Federal whistleblowers who have been fired for their disclosures can go without work for years. The financial and emotional cost to these courageous whistleblowers and their families cannot be underestimated. At the same time, the lack of a quorum could have a chilling effect on countless numbers of potential whistleblowers.
President Biden announces two key appointments