Last week Congress commemorated National Whistleblower Appreciation Day—the first time both the U.S. House of Representatives and U.S. Senate passed resolutions recognizing a day to honor whistleblowers. The lawmakers picked July 30 because it marked the 241st anniversary of the nation’s first whistleblower legislation, which became law before the Bill of Rights.
Lawmakers have also looked to take some more concrete, less symbolic steps related to corporate and government whistleblowers—with a major exception: Congress has taken no action to place anyone on the Merit Systems Protection Board, which is the “quasi-judicial agency in the executive branch” responsible for reviewing most federal employees’ whistleblower appeals.
The three-member appeals board has gone without a quorum for two years of President Donald Trump’s administration and has been entirely vacant since March 2019, when its last Senate-confirmed member’s term expired.
Trump nominated three members to fill the board, and the Senate Homeland Security and Governmental Affairs Committee advanced all three nominees to the full Senate between February 2019 and June 2019. But no vote has been held. Never before in MSPB’s 40-year history has the board lacked a Senate-confirmed member, according to Government Executive.
Stephen Kohn, partner at Kohn, Kohn & Colapinto, a D.C. law firm specializing in whistleblower protection, said the MSPB vacancies have created a backlog of thousands of cases of federal whistleblowers.
“If it remains vacant, [federal whistleblowers] effectively have no rights,” Kohn said. “I just don’t know how they get out of this.” Kohn said the backlog “is devastating,” and the only way to tunnel out of the cases could be to allow federal employees to proceed de novo in federal court after waiting a certain period—perhaps 180 days—for action from MSPB.
Kohn is also founder and chairman of the board of the National Whistleblower Center, which advocated for the creation of a National Whistleblower Day. Among the center’s current efforts are campaigns to safeguard protections for whistleblowers under the False Claims Act and the Dodd-Frank Act, which created the Securities and Exchange Commission’s whistleblower program in the wake of the financial crisis.
He said retaliation for whistleblowers in the federal government and in corporate America “remains extremely high.” In the federal government, Kohn identified the U.S. Department of Veterans Affairs as having the biggest problem protecting whistleblowers from retaliation. In corporate America, Kohn said the problems exist across industries and include companies such as Google and Apple.
There’s no shortage of lawyers wanting to work on whistleblower cases, Kohn said, citing his interactions with students as an adjunct professor at Northeastern University School of Law. For now, he said, there aren’t enough whistleblower lawyer jobs to meet the interest he sees. But some of that could soon change.
The Taxpayer First Act of 2019, which was signed into law by Trump in July, includes new language regarding anti-retaliation protection of whistleblowers involved in tax matters. Kohn pointed to the legislation as something that should spur labor and employment practices around D.C. to integrate whistleblower protection work into their practices.
There’s reason to think other changes to federal law relating to whistleblowers could arrive before 2020 as well. The Senate Whistleblower Protection Caucus, a bipartisan group of legislators formed in 2015, added three new members last month: Sens. Marsha Blackburn, R-Tennessee; Tammy Duckworth, D-Illinois; and Kyrsten Sinema, D-Arizona. The 14-member caucus is led by Sen. Chuck Grassley, R-Iowa, and Sen. Ron Wyden, D-Oregon.