How to Get to the Federal Circuit if MSPB Loses its Quorum

By Deborah J. Hopkins, February 14, 2025

You may have heard that earlier this week the White House fired Cathy Harris, who until recently was Chair of the U.S. Merit Systems Protection Board (MSPB or Board). Harris was serving the remainder of a seven-year term in a Senate-confirmed position set to expire in 2028, and has since filed a lawsuit claiming her removal was illegal because there was no cause for her removal.

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.

In the event Harris does not end up reinstated, the three-member Board at MSPB could lose its quorum at the end of the month; Member Raymond Limon’s term is set to expire Feb. 28. Limon has the ability to choose to hold over for up to a year or until a successor is named and confirmed, but if he departs only Chairman Henry Kerner would remain. At least two Senate-confirmed members are required to issue decisions on PFRs, so the Board could cease to be functional at the PFR level in just two weeks. (We are really hoping it won’t.)

And at a critical time where an influx of litigation is expected over 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 earlier this week that 99 percent of the inherited inventory had been adjudicated since the Board regained its quorum in 2022.

So what does this all mean for Federal employees, or those former employees who were recently removed?

If the Board loses its quorum, administrative judges will still be able to issue decisions of employee appeals, but PFRs of those decisions would stack up until a quorum is restored.

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) 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 92 percent of the time. We expect we may see more Federal Circuit action in the coming months if the Board loses its quorum. Let’s hope that doesn’t have to happen. [email protected]

Related training:

• Taking Performance and Misconduct-based Actions: Implementing Executive Order 13839 in 2025, February 25
• MSPB Law Week, April 7-11

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.