WASHINGTON, D.C. (FEDweek) — Even though the three-seat MSPB governing board has a quorum of two members, many appeals of hearing officer decisions brought there are not being reviewed, and those decisions are becoming the agency’s last word.
Attorneys and whistleblower advocates say that’s largely due to one of the members, Henry Kerner, recusing himself from cases connected to the Office of Special Counsel, which he headed in 2017-2023 before being named to the board by then-President Biden. At least two members—in the current situation, both—must agree to hear an appeal.
Without review by the board of a hearing officer’s decision—most such appeals are filed by employees, although some by agencies—the only remaining available route for continuing a challenge would be an appeal to the U.S. Court of Appeals for the Federal Circuit.
The issue first was raised by Bloomberg News, which found that about 40 percent of cases brought to the board are rejected because of recusals—including in some cases by the other member, James Woodruff, who was involved with personnel matters at the Department of Defense/War before being confirmed last fall.
Amanda Smith, a partner at the Tully Rinckey PLLC law firm, said that while the option to go to court remains available, it has disadvantages over consideration by the MSPB board.
“The MSPB is an administrative court and arguably the subject matter expert on the matters it is given authority to hear for federal employees. There are no costs associated with the MSPB unless you are retaining an attorney and procedural rules are arguably much more manageable or understandable for pro se litigants than the court of appeals,” she said.
“Further, it is an erosion of an option for federal employees – where you could have the Board review a case file and decision and if still in disagreement you could appeal further to the court of appeals, now there is one last review or opportunity for review,” she said.
Having a third member on the board in the future likely would not help employees whose appeals have been rejected, she added. Once an MSPB decision is final it would be “very difficult to re-open that petition for review and extremely unlikely to be reviewed. Once the decision is final you have very strict deadlines for the next action,” she said.
The MSPB recently said in its annual budget request that it is experiencing a “wave of appeals resulting from governmentwide reorganization and reduction in force actions” on top of one earlier last year resulting from widespread firings of probationary employees. The agency meanwhile has cut its own staff since fiscal 2024 by about 20 positions to about 160.
The board was without a quorum for about half of 2025, following the end of one Democratic member’s term and President Trump’s firing of the other (who is continuing to challenge that in court). That was reminiscent of the situation during the near entirety of the first Trump administration, when a backlog of some 3,800 appeals built up.
That backlog had been virtually cleared out by early last year after confirmation of Biden administration nominees, including Kerner for the seat designated for the party not in control of the White House at a given time. Since a quorum of two members was reestablished last fall with the confirmation of Woodruff, the board has issued just six precedent-setting decisions.
