How to Get to the Federal Circuit when MSPB Loses its Quorum
Updated June 15, 2025
By Deborah J. Hopkins, February 14, 2025
Last month the Supreme Court allowed Cathy Harris, who until recently was Chair of the U.S. Merit Systems Protection Board (MSPB or Board), to remain fired while her case is pending in Federal court. Harris was serving a seven-year term in a Senate-confirmed position set to expire in 2028 when she was fired by President Trump in February, and her lawsuit claims her removal was illegal because the statute permits removal only for cause and the President had no cause. The Trump administration’s stance is that he should be able to fire the head of any independent agency without cause, and that any restraint on that authority is unconstitutional.
Among other things, the MSPB adjudicates covered Federal employee appeals of their removals from service. Administrative Judges (AJs) hold hearings and issue decisions on the removals, and the judges’ decisions can then be appealed through a Petition for Review (PFR) to the three-member Board.
Because Harris has not been reinstated, the three-member Board at MSPB is without a quorum; at Member Raymond Limon’s term expired Feb. 28 and only Acting Chairman Henry Kerner remains, as a new appointee has not been named. At least two Senate-confirmed members are required to issue decisions on PFRs.
And at a critical time where there’s been an influx of litigation over probationary removals, RIFs, and more, this little agency is crucial to the functioning of the executive branch. From 2017 to 2022, the Board was without a quorum because the Senate refused to vote on President Trump’s nominees from his first term, and as a result around 3,800 PFRs stacked up. This meant there were thousands former employees waiting years to find out if they would get their jobs back. Harris shared in February that 99 percent of the inherited inventory had been adjudicated since the Board regained its quorum in 2022.
So what does this lack of quorum now mean for Federal employees, or those former employees who were recently removed? Well, AJs will still be able to issue decisions of employee appeals, but PFRs of those decisions will stack up until a quorum is restored, just like we saw starting in 2017.
Unless.
There’s a lesser-known alternative to filing a Board PFR that you should know about: filing a PFR directly with the Court of Appeals for the Federal Circuit. If an AJ issues a decision and 35 days goes by without the former employee (called an appellant) or the agency filing PFR at the Board, the AJ’s initial decision becomes the final Board decision. This gives the parties the right to file a PFR of the AJ’s decision directly with the Federal Circuit. 28 USC § 1295(a)(9); 5 USC 7703(b)(1)(A); 5 CFR § 1201.113.
Usually, appellants file PFRs to the MSPB because it’s free, and filing in the Federal Circuit is not – it costs around $600. Also, the decisions on PFRs from the Board can still be appealed to the Federal Circuit – so appellants who go the route of taking the PFR directly to the Federal Circuit are losing an entire step of review.
The Federal Circuit’s scope of review in an appeal from the Board is limited by statute; it must affirm the Board’s decision unless the court finds the decision to be:
“(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 USC § 7703(c); see Kahn v. Dep’t of Justice, 618 F.3d 1306, 1312 (Fed. Cir. 2010).
Under the substantial evidence standard, this court reverses the Board’s decision only “if it is not supported by ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Haebe v. DOJ, 288 F.3d 1288, 1298 (Fed. Cir. 2002) (quoting Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096 (Ct. Cl. 1981)).
In a typical year, the Federal Circuit upholds the MSPB’s decisions about 90-95 percent of the time. We expect we may see more Federal Circuit action in the coming months because the Board is once again without a quorum. Hopkins@FELTG.com
Related training:
- Do You Really Know How to Use the Douglas Factors? July 10
- Advanced MSPB Law: Navigating Complex Issues, July 22-24
- MSPB Law Week, September 8-12
The information presented is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.