Federal employee appeals board is fully functional again — for now

There’s a quorum again on the board that hears appeals of firings and suspensions of federal employees after a majority of judges on the U.S. Court of Appeals for the D.C. Circuit vacated an earlier decision that temporarily enabled President Donald Trump to remove a Democratic appointee to the Merit Systems Protection Board. 

Trump in February attempted to fire Cathy Harris, a Biden appointee, from the MSPB. A district judge blocked the removal, but that order was paused on March 28 in a 2-1 decision by a three-judge panel of the D.C. Circuit while it heard the Trump administration’s appeal. 

On Monday, however, a majority of D.C. circuit court judges overruled that decision through en banc reconsideration, which is a rare process that can be utilized if a litigant feels a circuit panel didn’t adhere to Supreme Court precedent. Such reconsideration involves all circuit judges who are in regular active service rather than the usual three-judge panel. 

The circuit court judges were split 7-4 in granting the motion for en banc reconsideration. 

At issue in this case is Humphrey’s Executor, a 1935 Supreme Court decision that found the president doesn’t have unfettered authority to remove officials on multimember, quasi-judicial bodies. 

“The Supreme Court’s repeated and recent statements that Humphrey’s Executor…remain[s] precedential require denying the government’s emergency motions for a stay pending appeal,” the judges wrote. 

Monday’s decision, as well as the overturned March 28 order, also apply to Gwynne Wilcox, a Biden appointee to the National Labor Relations Board who Trump similarly fired but who was later reinstated by a district court. 

In a brief, lawyers for the Trump administration said they would seek emergency relief from the Supreme Court if Wilcox and Harris were allowed to return to their positions. 

Judge Neomi Rao, in a dissent joined by the other opposing judges, wrote that “[w]hile statutes provide for-cause removal protections for Harris and Wilcox, these restrictions are likely unconstitutional because they interfere with the president’s authority to remove principal officers who execute the law.”

From 2017 to 2022, the three-person MSPB lacked a quorum of at least two board members, which created a 3,500-case backlog that was only just recently eliminated. The board has recently experienced a surge in cases as a result of the president’s mass firings and layoffs of federal employees.

No more than two members of MSPB can be from the same political party. Ray Limon, another Democrat, saw his term expire earlier this year, leaving Harris and Henry Kerner, a Republican.
 

Eric Katz contributed to this report