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Part Two of a Two-Part Series
In our first article, we addressed the implications of newly proposed legislation, the Merit Systems Protection Board Empowerment Act of 2020 (hereinafter “MSPBEA”) on the 3,000 plus case backlog that currently sits while the Board’s nominees wait to be confirmed by the Senate. Unfortunately, the reauthorization of the Act will do nothing to clear the backlog, but the Act offers some novel ideas for addressing better outcomes for whistleblowers. We assess these novel ideas below.
In theory, enactment of the MSPBEA would benefit federal employee whistleblowers. Specifically, the new provision that MSPB Board members and Administrative Judges undergo mandatory training, should improve outcomes for Federal employee whistleblowers. This outcome, according to proponents of the bill, is supported by recent studies. However, an article in Administrative Sciences points to administrative judges’ hostile attitude towards whistleblowers and political pressure as the primary reasons for negative outcomes in whistleblower cases. The “lack of expertise” of administrative judges is only mentioned secondarily.
The study does conclude that “it seems promising that some governmental whistleblowing agencies …. and NGOs invest in the training of government officials involved in the implementation of the legislation” such as judges. However, the last line of this finding states, “research on the effects of such training is needed” at 25. Therefore, the study could be characterized as inconclusive.
As it pertains to Federal employees, the effects of any potential training may not result in any significant positive outcome. Per the article, the negative outcomes are largely due to hostile administrative judges who may additionally succumb to political pressure. Therefore, it’s highly questionable whether the research and training provisions of the MSPBEA would actually result in more favorable outcomes for Federal employee whistleblowers.
If a Federal employee is in the unfortunate position of having one case sitting in the Board’s backlog of cases, the employee can withdraw the case at the Board and appeal directly to the U.S. Court of Appeals for the Federal Circuit. This is an option, but it is only recommended when there is clear judicial error.
Additionally, it will not work if the Agency appeals a case that an employee actually won. If the appeal is based upon a factual finding, administrative judges are given quite a bit of deference in this scenario. Where an appeal involves factual findings or credibility, the likelihood of winning on appeal is slim. Further, the cost of appealing directly to the Federal Circuit is extremely high, much higher than appealing to the Board, and therefore a Federal employee would want to avoid this cost unless they have a good chance at winning.