Washington, DC — Just as the federal government gears up for its biggest personnel upheaval in history, the civil service court will not be able to function due to a lack of quorum caused by the Trump White House, according to Public Employees for Environmental Responsibility (PEER). The result is that employee legal challenges to removals are unlikely to be remedied in a timely fashion for the foreseeable future, no matter how egregious the violation.

Last week, the U.S. Court of Appeals for D.C. reversed the reinstatement of Cathy Harris to the Merit Systems Protection Board (MSPB) following her removal midway through her 5-year term at the order of President Trump. MSPB is a 3-member supposedly independent board whose members can only be removed for cause noticed by the President to Congress, a step Trump ignored.

The ruling means Harris must step down from the Board during the pendency of litigation on the legality of her termination. The case will likely end up in the Supreme Court. Due to another vacancy, Ms. Harris’ absence means MSPB is down to a single member and has no quorum to decide cases. MSPB is the key venue for protecting whistleblowers and ensuring Reductions-in-Force (RIFs) are done fairly, among other issues.

“The Trump administration pledges to abide by the rules but then sidelines the referees before they can call fouls,” said PEER Executive Director Tim Whitehouse, noting that the ongoing litigation in Harris’ case could keep her suspended for years. “In this instance, justice delayed is justice denied and that is just what the White House wants.”

Whitehouse points to Trump’s first term when he declined to fill any MSPB vacancies. Like now, that body quickly lost its quorum and eventually all its members. Because MSPB could render no decision, the backlog of unanswered appeals rapidly grew to nearly 3,800 cases, a backlog it took MSPB with a full complement of Biden appointees nearly 4 years to tackle.

This time around, paralysis of the MSPB could be far more consequential, as Trump is initiating RIFs affecting several hundred thousand civil servants. Any ruling by an MSPB judge in favor of an employee could be appealed by the agency to the full Board, where it will sit indefinitely until new MSPB members are appointed, confirmed, and able to wade through accumulated cases.

“The upshot is that there will be substantially much less check on political vendettas, whistleblower reprisals, cronyism, and self-serving corruption,” added Whitehouse, a former senior enforcement attorney with the U.S. Environmental Protection Agency, citing Trump’s preemptory removal of nearly a score of Senate-confirmed Inspectors General and the heads of both the Offices of Special Counsel and Government Ethics. “The federal civil service will descend into a lawless, dystopian down spiral from which it may not recover unless the courts intervene to protect the independence of MSPB members.”

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See court opinion

Look at the role of MSPB

Examine complicated RIF rules MSPB is to enforce

Revisit MSPB quorum loss under