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Vacant MSPB impacting federal workers, whistleblowers

As of March 1, the Merit Systems Protection Board no longer has any members. The three-member board has been without a two-member quorum since January 2017, when one of two remaining board members' term expired. The other remaining member's term expired March 1 after having been extended for a year.

This is the first time in history that none of the three board positions have been filled -- and members cannot be appointed in an acting capacity but must be confirmed by the Senate. As of this writing, none of President Trump's nominees has made it out of committee. One nominee withdrew his name from consideration, and the Senate has decided not to vote to confirm less than three nominees at a time.

What impact does an empty board have on federal employees?

On Feb. 28, a meeting was held to try to gauge the impact of having an empty MSPB. According to a Congressional Research Service legislative attorney, the impact will depend in part on how much the previous board delegated to career staff.

One thing that hasn't been delegated is the issuance of stays of punishment for federal workers with current cases pending review. These stays are crucial to whistleblowers and others who may face retaliation.

Unfortunately, the MSPB can't delegate further authority without a quorum of at least two. Moreover, it can't delegate its appeal authority -- and that has led to a backlog of at least 1,975 appeals. According to the last board member, that backlog will take some three years to get through.

Another function of the board is to provide policy briefings and overall guidance to the agency's administrative law judges (ALJs). The ALJs handle federal workers' administrative due process hearings, which are the workers' only day in court. the board provides the ALJs with an interpretation of employees' rights in these hearings.

The lack of board guidance may be visible in the track record for whistleblower rights, according to the Government Accountability Project. Rulings favorable to whistleblowers had been at about 7 percent when the last quorum was present. Now, only about 2.2 percent of rulings favor whistleblowers.

Finally, the lack of board oversight changes the incentives. Since agencies are considered to be "winning" unless the board steps in, they lack as much incentive to settle cases.

The reality is that federal employees could see different results than expected in many employment law and whistleblower cases. Appealing an adverse ruling currently means getting in line and waiting through for the backlog to be addressed. If you have an issue with your agency or need to appeal an adverse ruling, the best thing you can do is get quality representation.

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