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Part One of a Two-Part Series
On July 30, 2020, members of the House of Representatives, led by Gerald Connolly of Virginia and Carolyn B. Maloney of New York, introduced the Merit Systems Protection Board (“MSPB”) Empowerment Act (“MSPBEA”) of 2020 which seeks to reauthorize the MSPB’s governing Board through 2025. (H.R. 7864). The Board currently has a backlog of cases waiting to be heard because no one currently sits on the Board due to a stalemate in the Senate. As of August 5, 2020, the backlog is approaching 3,000 cases.
In addition to reauthorizing the Board, the act introduces a few novel provisions. One provides assistance to facilitate surveys of Federal Employees and provides to the Board, unless prohibited by law, information concerning applicants for Federal employment. Two provides for and requires the Board, Administrative Judges, or other employees designated by the Board to hear whistleblower cases to undergo and successfully complete training pertaining to the Whistleblower Protection Act of 1989. This second provision would specifically apply to cases brought pursuant to 5 U.S.C. 2302(b)(8) or 2302(b)(9)(A)(i), (B), (C), (D) or 2302(b)(13).
Although the MSPBEA has new and novel provisions which may have a positive effect on protecting Federal employee whistleblowers, it will have little to no effect on the bigger issue, the current backlog. The reason for the backlog is because the Senate has not confirmed the Board’s nominees. Without a quorum, meaning at least two of three members confirmed and in place, the Board cannot rule on any appeal. Simply put, there is no Board.
Unfortunately, the new bill does not, nor can it force members of the Senate to confirm the three new nominees, all of whom have been cleared by the Senate’s Homeland Security and Governmental Affairs Committee. The plan is to confirm all three nominees with a unanimous vote. However, if one member of the Senate objects, then a unanimous consent vote cannot happen. At least one member is objecting to one of the nominees at this point in time.
Blame has been placed at the foot of the American Federation of Government Employees (“AFGE”) and other Federal employee union groups for opposing the President’s nominations. The groups would prefer nominees that, in their view, would support fairness and justice to Federal Government employee whistleblowers. On the other side of the isle, the President’s supporters have been critical of Dennis Kirk, the president’s nominee to lead the MSPB, as an establishment Republican with ties to the Bush Administration.
Regardless, the Board’s backlog will not begin to clear until at least two of the three nominees are confirmed by the Senate. Until then, the potential enactment of the MSPBEA would have no effect on helping a Federal employee with a case that has been ruled upon by an Administrative Judge and which is on appeal at the Board.