Why We Need a Third MSPB Member Right Now
By Deborah J. Hopkins, May 5, 2026
Longtime FELTG readers remember the palpable excitement in March 2022 when, after over five years without a quorum the Senate confirmed two members to the U.S. Merit Systems Protection Board: Raymond Limon and Tristan Leavitt. With two of three members in place a quorum was restored, Petitions for Review could once again be decided, and the nearly 3,800-case backlog was finally being addressed. In June of 2022, Cathy Harris was confirmed and the Board once again had a full slate of members.
Today, we have two members: Henry Kerner who was confirmed in June 2024, and James Woodruff II who was confirmed in October 2025 (Leavitt and Limon’s terms both expired). Harris, whom President Trump fired last February three years before the end of her term, recently requested certiorari from the Supreme Court over her removal, but pending the outcome of her litigation she remains fired per an appeals court order.
Despite the bigger legal questions involving Harris’s removal, if two is a quorum, why do we desperately need another member at MSPB? Well, it relates to who these two Board members are, and their work history at previous agencies.
Kerner was the Special Counsel at the United States office of Special Counsel (OSC) from 2017-2023, which means he was directly or indirectly involved in cases involving allegations of whistleblower retaliation and prohibited personnel practices for 6 years prior to his move to MSPB. Many complaints initially filed at OSC end up before MSPB. In typical years, allegations of whistleblower retaliation via an Individual Right of Action or an Otherwise Appealable Action might comprise 10-25 percent of Board appeals – so, hundreds of cases.
Woodruff has work history at the Air Force, which causes him to recuse whenever there’s a case involving an Air Force employee.
So, what happens when one member votes and one member recuses? The administrative judge’s decision stands, effectively eliminating an entire level of review. In addition, the case cannot become precedent.
If we have a third Board member – whether Harris is reinstated or the President nominates and the Senate confirms someone else – then even if there is a conflict with Kerner or Woodruff, two members could still vote and make MSPB case law.
We reached out to MSPB and asked about the recusals, and Zac Kurs from Public Affairs was kind enough to reply. Here’s his full statement from April 28, 2026:
Recent media reports on this topic have exaggerated the number of recusals by calculating a recusal rate that appears high. The recent number of recusals is artificially inflated and will not be reflected in MSPB’s year-end case numbers. This is because the Board cannot issue a “lack of quorum order” until the Board has a quorum. So, the recusal cases that built up during the Board’s most recent lack of quorum period [after Harris was fired and before Woodruff was sworn in] were front-loaded and issued quickly once the Board’s quorum was restored. In reality, the number of recusal cases is steadily decreasing as more time passes from when Mr. Kerner was Special Counsel and from when Member Woodruff was with the Department of Air Force.
Expediting the lack of quorum order cases is in the appellants’ interest. The order makes the AJ’s decision final so the appellant can demonstrate administrative exhaustion and seek relief through the Federal Circuit Court of Appeals, if they so choose.
When Acting Chairman Kerner was sworn in as Member in June 2024 during the prior administration, in consultation with agency ethics advisors, he decided that he would recuse from any appeal in which the appellant had a matter pending before OSC while Mr. Kerner was Special Counsel (October 30, 2017 – October 23, 2023). He also decided to recuse from any other appeal by an appellant that references, in any way, a matter pending with OSC during the relevant time period. Mr. Kerner’s recusal policy did not change upon the change in administration last year.
Most of the appeals from which Mr. Kerner has recused involve whistleblower claims because those are the ones first filed with OSC. If OSC does not take action or provide relief, then the appellant can file an Individual Right of Action appeal (IRA) with MSPB. The intent of this recusal policy is to avoid any perception of a potential conflict of interest. If an employee had a complaint pending with OSC during Mr. Kerner’s tenure there, and OSC did not provide relief, that employee might believe that Mr. Kerner was conflicted from then deciding his or her appeal as a Board member.
The MSPB has been through so much disruption in the past near-decade, we want to send a special shout out to its employees who have endured, as well as the thousands of appellants and representatives who have also withstood all the ups and downs. hopkins@feltg.com
Related training:
- Advanced MSPB Law: Navigating Complex Issues, Jul. 14-16, 2026
- Hearing Advocacy: Presenting Cases Before the MSPB and EEOC, Sept. 2-3, 2026
- MSPB Law Week, Sept. 14-18, 2026
The information presented here 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.
