The federal appeals court for the District of Columbia Circuit last week granted the Trump administration’s request to remove MSPB member Cathy Harris from the board. Image: Mark Van Scyoc/Shutterstock.com
By: FEDweek StaffThe MSPB board now lacks a quorum and is unable to decide on appeals of firings and personnel actions brought by federal employees, even as the number of challenges to the mass layoffs of probationary employees continues to grow there.
The federal appeals court for the District of Columbia Circuit last week granted the Trump administration’s request to remove MSPB member Cathy Harris from the board while the court considers an appeal of a lower judge’s ruling. The judge had ordered that she be kept on the board while the legal dispute continues, but in a 2-1 decision, a panel of the appeals court granted the Trump administration’s request to block that order.
At issue is a law stating that heads of independent agencies may be fired “only for inefficiency, neglect of duty, or malfeasance in office.” The trial judge ruled that the firing violated that law by providing no such justification, while the administration argues that the law itself is an unconstitutional limit on a President’s authority to manage the executive branch.
The same court earlier had overturned a similar order blocking the firing of Special Counsel Hampton Dellinger while he pursued a similar challenge. Dellinger then dropped his case, saying that the administration would have its own appointee in that position for the many months that a full appeal to the U.S. Supreme Court would consume.
The case of Harris and the MSPB differs, however, in that the agency is run by a three-member board, which continues to have one member who is acting as its head. However, the lack of a quorum means that the board cannot rule on appeals from decisions of its hearing officers—as was the case during the first Trump administration when a backlog of some 3,800 appeals built up and which took three years for the MSPB to clear out.
The caseload at MSPB has been increasing lately with challenges brought by probationary employees laid off starting in mid-February. Some 7,800 cases have been filed in the last six weeks, compared to an average of only about 100 a week previously.
Of the several challenges to the firings of senior agency officials, that of Harris—which also involves a fired member of the NLRB—is considered one of the most likely for an eventual appeal to the U.S. Supreme Court for a ruling on the underlying law.
Separately, the Supreme Court could rule as early as this week on the administration’s request to block a lower judge’s order requiring that six departments—Veterans Affairs, Agriculture, Interior, Energy, Defense and Treasury—stop the firing of probationary employees and offer reemployment to those already fired, numbering an estimated 24,000 or more.
The judge in that case, in the U.S. District Court for the Northern District of California, meanwhile has changed his position on one point, ruling that the AFGE union did have standing to bring the case in federal court. He earlier had held that interest groups that were co-plaintiffs did have standing but that the AFGE not restricted to bringing such a complaint to the FLRA. That ruling—which is contrary to those of other courts—could prove important since the administration is challenging the standing of the interest groups, as well.
In a second federal court case involving firing of probationary employees, a federal judge in the U.S. District Court for Maryland has said he is reconsidering the scope of a similar order he issued against 18 departments and agencies (including some in the other case). While the order has been nationwide in scope, at issue is whether it should apply only in the states whose attorneys general brought that case. A decision on that issue could come as soon as this week, as well.
Meanwhile, a class-action complaint has been filed at the MSPB challenging the firings of employees whose work involved DEI-type programs.
Shutdown Meter Ticking Up a Bit
Judge Backs Suit against Firings of Probationers, but Won’t Order Reinstatements
Focus Turns to Senate on Effort to Block Trump Order against Unions
TSP Adds Detail to Upcoming Roth Conversion Feature
White House to Issue Rules on RIF, Disciplinary Policy Changes
Hill Dems Question OPM on PSHB Program After IG Slams Readiness
See also,
How Do Age and Years of Service Impact My Federal Retirement
The Best Ages for Federal Employees to Retire
