The MSPB has experienced a surge of appeals to those hearing officers in recent weeks from laid-off probationary employees and many more are likely as agencies move ahead with planned RIFs in the upcoming weeks and months. Image: Pixel-Shot/Shutterstock.com
By: FEDweek StaffUpdated: The MSPB is again without a quorum as the U.S. Supreme Court has granted the Trump administration’s request to block a lower court’s order to keep Cathy Harris on the three-member governing board while she continues to challenge her firing.
The order is the latest in a legal back-and-forth over the firing of Harris. That sequence includes a trial judge’s order to restore her to the position while she challenges that firing, an appeals court panel’s action to block that order, a decision by the full appeals court to reinstate it, and now the high court’s action to block it again.
That has become the lead case in a dispute over a law stating that heads of independent agencies may be removed “only for inefficiency, neglect of duty, or malfeasance in office.” The administration has conceded that it cited no such reason in the firing of Harris or of several other senior officials of such agencies in brief no-explanations emails, but instead contends that the law improperly limits a President’s authority over the executive branch.
The Supreme Court did not address that underlying issue but ruled only against keeping Harris on the board while proceedings continue in the lower courts. It meanwhile invited her to file a response, potentially leaving open a chance that it will reverse direction.
With only one member for the foreseeable future, the MSPB will be unable to consider appeals of decisions by its hearing officers. The MSPB has experienced a surge of appeals to those hearing officers in recent weeks from laid-off probationary employees and many more are likely as agencies move ahead with planned RIFs in the upcoming weeks and months.
The Supreme Court’s action comes only days after the full appeals court had acted to restore Harris—and an MSPB quorum—and after the high court’s order in a separate case staying an injunction that had blocked the firings of probationary employees at six departments and had ordered the agencies to offer them reemployment. Separately, a federal appeals court issued a stay against a similar order by a different judge that had applied to those departments plus a dozen more agencies.
Both of those cases also are continuing in the lower courts, where the issue is whether OPM ordered the layoffs without authority and whether the layoffs amounted to RIFs that did not follow the pertinent laws and rules.
Each of those cases may ultimately be headed to the Supreme Court for a decision on the underlying issues.
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