Workers Stymied as Civil Service Board Punts Complaints (1)

Civil servants fighting their bosses’ decisions are increasingly seeing their appeals skipped by the board responsible for weighing their complaints.

The Merit Systems Protection Board, tasked with shielding civil servants from political retaliation and abuse, has declined to rule on nearly half of the cases involving challenges to administrative actions since its quorum was restored last year, according to a Bloomberg Law analysis of agency documents.

In about 40% of cases where a federal worker is appealing a decision by one of the board’s administrative law judges, the two-member MSPB was left without a quorum because one person recused themselves. The administrative judge’s decision is affirmed by default in these cases.

The number of recusals raises fundamental questions about the board’s effectiveness without a third member. President Donald Trump has sought more authority to fire federal employees at will and purge the government of perceived enemies, which in the past has included leaders of the MSPB and other independent agencies.

The trend complicates an already tough appeals process for workers. In 2024, the MSPB granted just 17% of petitions for review, and in recent years, its success rate before the US Court of Appeals for the Federal Circuit, where workers can appeal board decisions, has topped 90%.

“It’s not even like winning the lottery anymore,” said Tom Devine, legal director for the Government Accountability Project. “The board is rubber-stamping all of the administrative judges’ decisions.”

The board lacked a quorum from 2017 to 2022, and for most of 2025 after Trump fired board member Cathy Harris, a Biden appointee. It was restored last October, when the Senate confirmed James Woodruff, filling a second seat alongside acting Chair Henry Kerner. But the board is often unable to fulfill its duties due to recusals. The two men have sidelined themselves more than 140 times—a rate of about six per week.

In a single week in March, the members recused themselves more than 20 times. In each case, the board members declared a conflict without providing details about their reasoning for sitting out.

Where’s The Chair?

Kerner alone has accounted for more than 100 recusals, compared to about 30 for Woodruff, as of April 9.

That’s due to Kerner’s previous role as US Special Counsel, another watchdog agency that investigates worker allegations of political retaliation or Hatch Act violations. The back-to-back roles can create a minefield of potential conflicts, attorneys say, since the Special Counsel refers cases to the MSPB, much like a prosecutor would in a criminal setting.

“In reality, it is a judgment call,” said Joe Spielberger, senior policy counsel for the Project on Government Oversight. “This is where we would expect them to air on the side of impartiality.”

In a statement, MSPB spokesman Zachary Kurz said Kerner recuses himself from any matter that involved the Office of Special Counsel during his tenure or that could create an appearance of conflict.

“If an employee had a complaint pending with OSC during Mr. Kerner’s tenure there and OSC did not provide relief, that employee might believe that Mr. Kerner was conflicted from then deciding his or her appeal as a board member,” Kurz said, offering an example.

Many of the recent recusals stem from a backlog created after Harris was fired, Kurz added. Kurz added that these were “front-loaded and issued quickly” and don’t reflect the normal recusal rate.

All of the recusals so far have been labeled as nonprecedential, meaning they don’t have widespread policy implications. The current board has issued six precedent-setting decisions that required participation from both men, including one in March that paved the way for Trump to fire in-agency judges. The board determined that the immigration judges in the case influenced policy.

Potential Conflicts

Nearly all of Kerner’s recusals involve whistleblower retaliation, records show.

Woodruff’s complaints mostly concerned the US Air Force and the Department of Veterans Affairs, where he previously served as a deputy staff judge advocate and in-house attorney.

New MSPB members are typically subject to a yearlong cooling-off period where they’re expected to recuse themselves from any case involving a former employer or client.

Kerner’s cautionary approach stands in contrast to his time as Special Counsel during Trump’s first term, when he accused 13 of the president’s top aides—including his chief of staff and son-in-law—of illegally campaigning while on government duty.

The 2021 report—which has since been removed from the OSC website—describes a “willful disregard for the law” that was “especially pernicious” among Trump’s deputies at the time.

“Senior Trump administration officials chose to use their official authority not for the legitimate purposes of the government, but to promote the re-election of President Trump in violation of the law,” the report said.

In 2018, Kerner recommended that then-White House Counselor Kellyanne Conway be firedfor trashing Democratic presidential candidates in official appearances, which he said violated the Hatch Act, an 80-year-old law restricting the political activities of federal employees.

She was spared, in part, because the MSPB lacked a quorum.