Merit Systems Protection Board Regains Quorum for First Time in Over Five Years

On March 1, the U.S. Senate confirmed Raymond Limon and Tristan Leavitt to the Merit Systems Protection Board (MSPB), restoring a quorum on the Board for the first time since January 8, 2017. During the five years it lacked a quorum, the MSPB, the quasi-judicial agency tasked with overseeing federal employee whistleblower retaliation cases, was unable to issue final rulings on cases. The lack of quorum undermined the whistleblower protection system for federal employees and left hundreds of whistleblowers in legal limbo.

“Thank goodness! This comes way too late for the thousands of federal employees whose cases were on hold,” said Kohn, Kohn & Colapinto founding partner Stephen M. Kohn. “This delay demonstrates the need for federal employee whistleblowers to have direct federal court access. Hopefully the new board members will act promptly to address whistleblowers’ rights in accordance with the law.”

The MSPB now faces the challenge of dealing with the immense backlog of cases that has piled up over the past five years. It is estimated that there are currently over 3,500 cases pending before the Board. Over 750 of these are whistleblower retaliation cases according to reporting by Whistleblower Network News. In a recent interview, former MSPB member Mark Robbins stated that the backlog “would take about five years to process, just given the amount of staff and the time that the three new members are going to need to read through these files.”

Whistleblower advocates have argued for decades that federal employee whistleblowers deserve access to jury trials in federal court. The Whistleblower Protection Improvement Act of 2021, which was introduced by a bipartisan group of representatives in May 2021, would permit most federal employees to remove their cases to federal district court for a real trial, if the MSPB does not issue a ruling on their whistleblower retaliation claims within 180 days.