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A quorum has been restored on the board responsible for reviewing appeals concerning the termination and suspension of federal employees following a pivotal decision by a majority of judges on the U.S. Court of Appeals for the D.C. Circuit. This ruling vacated a previous determination that had temporarily authorized President Donald Trump to dismiss a Democratic member of the Merit Systems Protection Board (MSPB).
Earlier this year, President Trump sought to remove Cathy Harris, a Biden appointee from the MSPB. A district judge blocked this attempt; however, the case was complicated when a three-judge panel of the D.C. Circuit issued a 2-1 ruling that suspended the district court’s decision while the Trump administration pursued an appeal.
On Monday, the majority of D.C. Circuit judges overturned that ruling through an en banc reconsideration, a procedural step that allows for the case to be reviewed by all actively serving judges rather than just a panel. Such a reconsideration is relatively uncommon and occurs in instances where there is a belief that a previous panel did not fully respect Supreme Court standards.
The decision to grant en banc consideration was contentious, with a split of 7-4 among the judges willing to review the case. Central to this legal matter is the Supreme Court ruling in Humphrey’s Executor from 1935, which established that the president does not possess unrestricted authority to dismiss members of multi-member quasi-judicial bodies.
The judges stated, “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.” This recent ruling not only affects Harris but also Gwynne Wilcox, another Biden appointee to the National Labor Relations Board, whom Trump similarly attempted to remove but was later reinstated in district court.
Attorneys representing the Trump administration indicated in court briefs that they would seek emergency intervention from the Supreme Court if both Wilcox and Harris are permitted to resume their roles.
Notably, Judge Neomi Rao dissented, asserting, “[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.”
This ongoing issue of quorum at the MSPB has historical significance; from 2017 to 2022, a sustained lack of enough board members resulted in a backlog of approximately 3,500 cases, an issue that has recently been addressed. The board is now facing an influx of cases due to mass dismissals and layoffs enacted during the Trump administration.
Current regulations dictate that no more than two members of the MSPB may belong to the same political party. With the term of another Democrat, Ray Limon, having recently expired, the board is now composed of Harris and Henry Kerner, a Republican.
Eric Katz contributed to this report
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