Biden’s Third Nomination to the MSPB Should Trigger Fast Confirmation Hearings

Kohn, Kohn & Colapinto LLP

On January 8, 2017 the U.S. Merit Systems Protection Board (“MSPB”) lost its quorum and was no longer able to issue any final orders in federal employee whistleblower cases. This triggered, in the words of the MSPB professional staff, the “most dire crisis” facing the Board “since it was established by the Civil Service Reform Act of 1978.” The MSPB was created by Congress to hear federal employee civil service, discrimination, and whistleblower retaliation cases. Once the quorum was lost, however, the MSPB was unable to hear thousands of federal employee cases, including the vast majority of whistleblower retaliation cases. filed by federal workers. Now, for the first time in years, three highly competent nominees for the Board were nominated by President Joe Biden. The fate of federal employee whistleblowers now shifts to the U.S. Senate that must confirm these nominations.

The hardships facing whistleblowers over the past four years have been well documented. As reported in a 60 Minutes investigation, thousands of federal employees cannot obtain any justice, because there are no Board Members with the legal authority to issue final orders in their cases. For example, former Army Corp of Engineers whistleblower Dr. Tommie (Toni) Savage won her case years ago. Dr. Savage was a highly respected contracting officer at the Army Corps of Engineers Huntsville, Alabama Support Center. She had decades of outstanding performance reviews, promotions, and the highest achievement awards. But her career came to an end in 2006 when she detected a pattern and practice of illegal contracting activity resulting in millions of dollars of contracting fraud.

The retaliation against her was severe. Savage, who is African American, was removed from her position, issued downgraded performance reviews, denied performance awards, and subjected to insensitive and hostile racist statements. The MSPB found that she was subjected to illegal retaliation and, for the first time under the Whistleblower Protection Act, found that she was subjected to an illegal hostile work environment. Her case set precedent and was remanded to an Administrative Judge to determine damages and other issues. After the judge issued his order, the case went back to the Board. But once the Board lost its quorum, Savage could not enforce her victory and could not obtain any damages whatsoever. She had to wait for the Board to issue a final order, which it could not. Over five years have gone by and she still is without any relief – despite being a victim of willful retaliation for exposing contracting frauds.

During the 2017 National Whistleblower Appreciation Day ceremony Savage gave a moving speech describing her plight. She is not alone. Approximately 1000 whistleblowers share her fate.

Action on President Biden’s nominations is a matter of urgency. The backlog facing the Board is immense. In response to a Freedom of Information Act request the MSPB confirmed that, as of January 2021, there were 3118 cases waiting for the three Board members to be confirmed by the Senate in order to simply have the authority to issue a final order in these cases.

President Biden’s three nominations, which include one Republican, are all highly qualified. The nominee for Chair is Cathy A. Harris, an attorney at the Washington, D.C. firm of Kator, Parks, Weiser & Harris, PLLC, where she serves as the Chair of the firm’s Sexual Harassment and LGBT Practice sections. As explained in the White House statement announcing her nomination, “Ms. Harris has practiced employment law, including before the Merit Systems Protection Board, for over two decades. She has extensive experience in the litigation and settlement of federal sector employment class actions, and also represents individual employees.”

Biden’s second nomination, Raymond Limon, is an experienced federal manager with expertise in personnel matters. The White House statement on Mr. Limon explained that he “is the Deputy Assistant Secretary for Human Capital and Diversity, and Chief Human Capital Officer” at the Department of the Interior (DOI) and that his “Directorate provides strategic human capital; safety/health; and training policies and services for the Department’s 70,000 plus employees serving in over 350 occupations and 2,400 locations.”

On September 2, 2021 President Biden nominated the third member of the Board, Mr. Tristan Leavitt. Leavitt currently is the general counsel of the MSPB and has been acting as the Board’s chief executive since 2019. The White House described his background: Before being General Counsel of the MSPB Leavitt worked for the “Office of Special Counsel as the Principal Deputy Special Counsel, including time as Acting Special Counsel. Prior to serving in the executive branch, he worked for eight years on Capitol Hill conducting congressional investigations.” Leavitt worked on the staff of the Senate Committee on the Judiciary for Ranking Member Chuck Grassley and the House Committee on Oversight and Government Reform for Chairman Jason Chaffetz.

The future of federal employee whistleblower rights has now shifted to the Senate Homeland Security and Governmental Affairs Committee, led by Chairman Gary Peters (D-Mich) and Ranking Member Rob Portman (R-Ohio). The Committee has not yet scheduled a hearing for the nominees. Whistleblower advocacy groups, such as the National Whistleblower Center, are calling for immediate hearings and a fast confirmation of all three nominees.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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