Despite increasing appeals, a growing pattern at the Merit Systems Protection Board (MSPB) is raising serious concerns among federal employment attorneys as a significant number of employee appeals are being denied without review due to board member recusals.
Recent reporting indicates that in nearly 40% of cases where federal employees seek review of an administrative judge’s decision, the MSPB is unable to act because one of its two sitting members has recused themselves. A third member, former Chair Cathy Harris, was fired by President Donald Trump in 2025 and has appealed to the U.S. Supreme Court, a case which is pending. In a recent amicus brief, lawmakers urged the Supreme Court to overturn an appeals court decision that upheld her termination.
Nonetheless, without a quorum, the MSPB, the independent agency tasked with protecting federal employees from political retaliation and improper personnel actions (learn more about the MSPB here), cannot issue decisions, which results in the automatic affirmation of the underlying ruling, regardless of its merits. For federal employees, this means that a critical layer of protection in the civil service system is increasingly out of reach, because any recusal currently leaves the MSPB without the quorum necessary to decide a case.
Impact of Recusals on Federal Employees
Since regaining its quorum in late 2025, one of the MSPB members has abstained more than 140 times. Many of these recusals stem from prior government service. Acting Chair Henry Kerner frequently recuses himself from cases involving the Office of Special Counsel, where he previously served. Board Member James Woodruff has recused himself from matters involving agencies where he previously worked, including the Department of Defense and Department of Veterans Affairs.
Specifically, Kerner has accounted for more than 100 recusals and Woodruff has accounted for around 30 recusals, as of April 9, 2026. And in 2024, the MSPB granted only 17% of petitions for review, reports indicate.
Further, the MSPB has seen a steady decrease in staffing levels since 2018. According to FedSmith, MSPB staffed 214 full-time employees in 2018; in June 2025, that number was down to 174.
MSPB’s staffing capacity will likely continue to decrease. In its 2026 congressional budget justification, MSPB said it hasn’t been able to fill critical job vacancies and is only able to hire “on a prorated basis where the need is greatest at any given time.”
Federal Workforce Changes
Even without staffing shortages and recusals from board members, with continuous changes in the workforce continuing to loom over federal employees, the MSPB has seen an influx of appeals filed by federal workers since President Donald Trump took office.
Between September 2025 and May 2026, the MSPB reported that it had received nearly 4,500 appeals, despite the partial government shutdown from Oct. 1, 2025 through Nov. 12, 2025, when the processing of all appeals was temporarily suspended.
With the federal workforce firings paired with the partial government shutdown, the agency’s employees have been stretched thin and do not have the manpower to keep up with the number of appeals being filed with the agency. This alone has caused delays in the typical appeals process, resulting in long wait times for decisions regarding federal workers’ appeals.
The MSPB appeal process, on average, reportedly takes anywhere from five weeks to three months. But with low levels of staffing and overwhelming dockets, the appeal process risks longer resolution times. For federal employees, this means uncertainty about their employment issues in a time where the Trump Administration has directly targeted the federal workforce with government-wide firings.
Contact a Federal Employment Attorney
What is occurring at the MSPB is a quiet erosion of federal employees’ due process rights. When the MSPB cannot hear appeals, employees are left with no meaningful opportunity to challenge adverse actions taken against them.
The MSPB appeals process is complicated, and there are many complex steps and difficult jargon to understand. No federal employee should be forced to suffer the consequences of unjust adverse action. Hiring an attorney from the start can give you the best chance of approval, but having legal representation at the appeal and MSPB levels is even more critical. Without the necessary experience, you risk being denied or forced to wait in the case backlog for review.
If you have questions about the MSPB or filing an appeal, our Tully Rinckey attorneys are available to help. Call (888) 529-4543 or schedule a consultation online.
