The MSPB has experienced a surge of appeals to its hearing officers this year, initially from probationary employees who were fired en masse, and more recently from tenured employees separated by RIFs over the summer. Image: one photo/Shutterstock.com
By: FEDweek StaffThe Senate has confirmed James Woodruff, who among other roles has represented the Air Force in proceedings before the MSPB and the EEOC and has advised military officials on employment law, for a seat on the MSPB governing board.
Woodruff was among some 100 nominees confirmed as a package on a party-line vote. He joins Henry Kerner, a Republican nominated and confirmed under then-President Biden, restoring a quorum to the three-member board. That will enable the board to again decide appeals of rulings by the MSPB’s hearing officers (once the shutdown ends) if the two agree; if they split, a case would be held pending a third member.
The board has lacked a quorum since early April, when President Trump’s firing of Cathy Harris, a Biden nominee, took effect after a federal appeals court lifted a stay on her firing that a lower judge had issued. That challenge remains pending in court. The third member of the board at the outset of this year, Democrat Raymond Limon, had left in February when his term expired.
Harris’s case is widely seen as potentially headed to the U.S. Supreme Court as a test case of a President’s authority to fire senior officials of independent agencies who by law may be fired only for “inefficiency, neglect of duty, or malfeasance in office.” The Trump administration cited no such reasons in firing her—or a number of other officials, including the head of the Office of Special Counsel—but it asserts that the law conflicts with a President’s authority to manage federal agencies. It is unlikely that a nomination for that seat will be made with that case still pending.
The six-month period without a quorum proved to be much shorter than the previous one, in which the board had either only one or no members through the entirety of the first Trump administration and through more than a year of the Biden administration. During that time, a backlog of some 3,800 appeals built up, a backlog that in just over more than three years the board had managed to virtually erase.
The MSPB has experienced a surge of appeals to its hearing officers this year, initially from probationary employees who were fired en masse, and more recently from tenured employees separated by RIFs over the summer. The number of appeals pending action at the board has increased by about five times to above 400 since it lost a quorum.
Another increase in appeals is likely due to the further RIFs that have been newly announced.
Meanwhile, bills (HR-5724 and S-2977) have been offered in Congress would allow federal employees to bring appeals of RIFs and other matters appealable to the MSPB in federal court if the MSPB does not make a decision in their cases within 120 days.
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See also,
TSP Takes Step toward Upcoming In-Plan Roth Conversions
5 Steps to Protect Your Federal Job During the Shutdown
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