Labor & Employment Law Daily Wrap Up, MSPB NEWS—FAQs seek to shed light on treatment of appeals during the MSPB’s lack of quorum, (Apr 3, 2025)

By Patricia K. Ruiz, J.D.

The FAQs discuss the current status of the Board, as well as the handling of the inventory of cases accumulated following the 2017-2022 lack of quorum.

This week, the U.S. Merit Systems Protection Board issued frequently asked questions (FAQs) regarding the lack of quorum period and the restoration of the full board. The FAQs follow a loss in the D.C. Circuit by former MSPB member Cathy Harris, who was fired without cause by the Trump administration in February 2025 and whose brief reinstatement in March ended with the appeals court’s decision on March 28 granting the administration’s motion for a stay pending appeal.

Current status of Board. The FAQ explains the impact of the current lack of a quorum as of March 28, 2025. The majority of the MSPB’s adjudication work continues unaffected, according to the FAQ. Individuals may continue to file appeals. Administrative judges will continue to adjudicate them and to issue initial decisions, which become final and judicially appealable if neither party files a petition for review with the Board. If a party wishes to file a petition for review with the Board, they may continue to do so, as the Board’s career staff continues to draft final decisions on petitions for review. However, the Board is not able to issue final decisions on petitions for review until a quorum is restored. The Clerk of the Board may issue decisions on requests to withdraw petitions for review without a quorum.

Inventory of cases following 2017-2022 lack of quorum. According to the FAQ, during a previous lack of quorum (2017-2022), AJs continued to issue initial decisions pursuant to longstanding delegated authority. If neither party filed a petition for review to the MSPB, the AJ’s decision became the final decision of the Board, appealable to an appropriate court or tribunal. If a party filed a petition for review while MSPB lacked a quorum, a Board decision could not be issued until a quorum of at least two Board members was restored. In addition to petitions for review received after January 7, 2017, petitions for review received before that date for which the voting process was not completed before the Board lost its quorum, could not be issued until a quorum was restored.

During the lack of quorum, the Board was unable to issue final decisions for petitions for review and other cases requiring Board vote. Once a quorum was established in March 2022, the newly reconstituted Board inherited a case inventory of approximately 3,800 cases and began issuing decisions quickly, focusing initially on issuing a range of decisions in cases that the Board deemed most critical, including precedential decisions or decisions that could otherwise affect many pending cases.

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