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Why it matters that the MSPB’s teeth are back in place

On Behalf of | Apr 19, 2022 | Federal Employment Law

For more than five years, the Merit Systems Protection Board (MSPB) lacked a quorum at its highest level. During that time, the board was unable to issue final rulings on cases. Its backlog grew to over 3,600 cases. All of these were unresolved appeals from earlier rulings.

However, all of this has recently changed. As we noted earlier, the MSPB regained its quorum in early March, and it has since gotten to work. The backlog is considerable, but some experts note there is reason to hope the board will be able to work quickly through many of the cases. And this is good. Especially for whistleblowers and other federal employees.

How can the board speed through its backlog?

According to one of the MSPB’s former board members, the board could prioritize simpler cases. By working through the clear-cut cases, they could move more quickly. The former board member said this method could help the board cut the backlog in half in a relatively short period of time.

Another person with prior MSPB experience noted that board members likely drafted thousands of opinions the board could now review. Without a quorum, board members were unable to rule on the cases, but they could still review them. Their opinions could help guide the new board members through the backlog.

How is this good for whistleblowers and other federal employees?

The fact the MSPB can now offer final rulings means the system is finally, once again, functional. While the board could not issue final rulings, federal employees did not enjoy the full protections the MSPB should offer. In fact, many employees waited for years without resolution, others filed cases that lacked proper guidance from the MSPB, and still others suffered because agencies filed appeals that they knew would sit untouched for weeks or months or years.

Meanwhile, the Federal News Network published an opinion piece that focused on some of the MSPB’s recent decisions. A couple of these saw employees finally win their cases against the agencies that mistreated them:

  • One whistleblower was reinstated to his position in the Transportation Security Administration nearly a decade after he was terminated. He also won back pay for the ten years the agency had wrongfully denied him his position.
  • Another case provided the long-sought justice to an Army whistleblower. After the whistleblower informed the Office of Special Counsel (OSC) that the Army was mishandling materials in an infectious disease lab, she found herself shunted to a nowhere job. Meanwhile, the OSC agreed there was a problem, but it needed the MSPB to intervene. Now the MSPB can intervene, and the whistleblower can expect repayment for her suffering.

There were other cases, too. There are still hundreds and thousands more to review, but these whistleblowers’ victories begin to reinstate the principles of justice for federal employees. They serve as a warning to federal agencies that the MSPB once again has teeth.


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