Van Hollen, Colleagues File Amicus Brief Urging Reinstatement of Merit Systems Protection Board Member

U.S. Senator Chris Van Hollen (D-Md.) was joined by Senators Mark Warner (D-Va.), Richard Blumenthal (D-Conn.), Tim Kaine (D-Va.), Gary Peters (D-Mich.), and Angela Alsobrooks (D-Md.) in submitting an amicus brief to the U.S. Supreme Court in the case of Harris v. Bessent, urging the Court to hear the case, reverse a decision by the D.C. Circuit Court of Appeals upholding President Donald Trump's firing of Cathy Harris from the independent Merit Systems Protection Board (MSPB), and order her reinstatement. Harris was a duly appointed member of the MSPB, an independent, quasi-judicial agency created by Congress through the Civil Service Reform Act of 1978 to uphold the integrity of the merit-based federal civil service by protecting federal workers against unfair personnel practices and political interference, among other important functions.

Trump fired Harris from the MSPB in February 2025 - nearly three years earlier than the scheduled end of her term in 2028 - without cause, despite federal law allowing for removal of MSPB board members only for inefficiency, neglect of duty, or malfeasance. In the brief, the Senators stressed that these removal restrictions must be upheld - warning that invalidating them would upend centuries of practice, severely weaken the independence of the MSPB and other panels, and violate the congressional intent that MSPB be protected against political pressure from the president.

"Since the Founding, Congress has vested adjudicatory power in non-Article III tribunals. Some - like the territorial courts established by the First Congress and the Court of Claims - were classified as "legislative" or "Article I courts." Others - like the Board of General Appraisers and the Board of Tax Appeals - were established as executive agencies. But in each instance, Congress provided tenure protections, reflecting the same basic judgment: that officials charged with adjudicating disputes must be insulated from political pressure if they are to discharge their duties impartially. This Court has repeatedly blessed that arrangement," the Senators began the brief, going on to add, "The Merit Systems Protection Board ("MSPB") sits comfortably within this tradition."

"As the Civil Service Reform Act's ("CSRA") structure and legislative history make clear, the MSPB's independence is central to the proper functioning of the civil service system. Congress took up civil service reform in 1978 in response to a growing consensus that the system had become inefficient, corrupted, and politicized. Its answer was to create an adjudicatory body that would be insulated from pressure by the President, and to channel claims that would otherwise be heard in district courts through that body," they continued.

"Congress took great pains to protect the MSPB's processes from political meddling. It assigned Board members 7-year terms and mandated that the Board be composed of members of both parties. Congress understood, however, that these protections were mere formalities without removal restrictions. As recent history shows, a President with unfettered removal authority can reconstitute the Board's composition whenever he so desires, bring its proceedings to a halt by denying it a quorum, or dictate the outcome of its proceedings by forcing its members to conform their conduct to his perceived preferences under pain of removal," the Senators stressed.

Full text of the argument in the brief can be viewed here and below.

INTRODUCTION AND SUMMARY OF ARGUMENT

1. Since the Founding, Congress has vested adjudicatory power in non-Article III tribunals. Some-like the territorial courts established by the First Congress and the Court of Claims-were classified as "legislative" or "Article I courts." Others-like the Board of General Appraisers and the Board of Tax Appeals-were established as executive agencies. But in each instance, Congress provided tenure protections, reflecting the same basic judgment: that officials charged with adjudicating disputes must be insulated from political pressure if they are to discharge their duties impartially.

This Court has repeatedly blessed that arrangement. And, relying on both practice and precedent, Congress and the Executive have worked in tandem to create bodies like the Court of Federal Claims ("COFC"), the Court of Appeals for the Armed Forces ("CAAF"), the Tax Court, the Court of Appeals for Veterans Claims ("CAVC"), the Occupational Safety and Health Review Commission ("OSHRC"), and the Federal Mine Safety and Health Review Commission ("FMSHRC")-all of whose adjudicators enjoy protection from at-will removal.

The Merit Systems Protection Board ("MSPB") sits comfortably within this tradition. Unlike run-of-the-mill agencies, which promulgate substantive regulations and bring enforcement actions, the MSPB waits passively for claimants to file appeals and adjudicates those disputes by applying law to facts. Even so, the majority classified the MSPB's powers as "executive" and concluded that its removal restrictions were incompatible with Article II.

The majority's reasoning is not merely flawed-it puts the removal restrictions of every Article I court and every independent adjudicative agency on the chopping block. All the aforementioned tribunals exercise "significant executive powers," as that term is defined by the majority. All, for example, have the capacity to promulgate their own rules of procedure and issue final orders. Indeed, the majority struggled to identify any feature that sets the MSPB apart. It took issue with the fact that the MSPB interprets a "host" of federal statutes; but the COFC interprets far more. It faulted the MSPB for using a 12-factor test, but the Tax Court uses an equally unwieldy test with 13 factors. And it suggested that the ability to be named respondent negates a body's status as purely adjudicatory. But district court judges were named respondents in mandamus proceedings until 1996, and even today, the Tax Court, OSHRC, FMSHRC appear as parties and are forced to defend their decisions on appeal.

There is, in short, no principled way to cabin the majority's reasoning to the MSPB. If the majority is correct, then Congress has been violating the separation of powers since this Nation's inception. Worse, if the majority is correct, then there is little Congress can do to stop the President from using his removal powers to bend these bodies' adjudicatory processes to his will. This Court should not embrace a rule that would so handicap Congress's ability to protect the impartiality of non-Article III adjudicators.

If the Court were to conclude that the MSPB exercised some quantum of excess executive power, the proper remedy would not be to invalidate the removal restrictions, but to sever the excess power. Indeed, severing the MSPB's removal restrictions is akin to amputating a leg to cure a skin blemish.

As the Civil Service Reform Act's ("CSRA") structure and legislative history make clear, the MSPB's independence is central to the proper functioning of the civil service system. Congress took up civil service reform in 1978 in response to a growing consensus that the system had become inefficient, corrupted, and politicized. Its answer was to create an adjudicatory body that would be insulated from pressure by the President, and to channel claims that would otherwise be heard in district courts through that body.

Congress took great pains to protect the MSPB's processes from political meddling. It assigned Board members 7-year terms and mandated that the Board be composed of members of both parties. Congress understood, however, that these protections were mere formalities without removal restrictions. As recent history shows, a President with unfettered removal authority can reconstitute the Board's composition whenever he so desires, bring its proceedings to a halt by denying it a quorum, or dictate the outcome of its proceedings by forcing its members to conform their conduct to his perceived preferences under pain of removal.

Separation-of-powers principles require courts, in fashioning severance remedies, to do the least damage possible to Congress's design. The majority departed from that principle by dismantling a central feature of the CSRA rather than excising any narrow excess of executive authority the MSPB may possess.

ARGUMENT

1. Invalidating the MSPB's Removal Restrictions Would Upend Two Centuries of Practice and Imperil The Independence of All Non-Article III Tribunals

1. Congress's Authority to Establish Non-Article III Tribunals Whose Judges Enjoy Removal Protections is Well Settled

1. Since the Founding, Congress has created non-Article III adjudicatory bodies-staffed by executive officers and nested within the executive branch-whose adjudicators were shielded from at-will removal. See John M. Golden & Thomas H. Lee, Congressional Power, Public Rights, and Non-Article III Adjudication, 98 Notre Dame L. Rev. 1113, 1129 (2023).

Congress's authority in this regard was recognized by James Madison himself. While Madison advanced a muscular vision of presidential removal authority in the lead up to the so-called "Decision of 1789," see Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 492 (2010), he took a markedly different view when the First Congress debated the Treasury Comptroller-an officer tasked with adjudicating appeals of auditor decisions to pay or reject Treasury claims. According to Madison, the President's ability to remove an officer depended on the "nature of [the] office." 1 Annals of Cong. 635 (1789) (Joseph Gales ed., 1834). Madison argued that the Comptroller's function partook "strongly of the judicial character" and that there were "strong reasons why an officer of this kind should not hold his office at the pleasure of the executive branch of the Government." Id. at 635-636. Responding to a colleague's contention that the President "had constitutionally a right to remove subordinate officers at pleasure," Madison stated: "I question very much whether [the President] can or ought to have any interference in the settling and adjusting of the legal claims of individuals against the United States." Id. at 638.

Although Madison ultimately withdrew his proposal to protect the Comptroller's tenure, the Founding generation plainly understood that Congress could limit the President's removal power over adjudicatory officers.

Thus, the First Congress created territorial courts whose judges were appointed by the President but held their commissions "during good behaviour." Act of Aug. 7, 1789, ch. 8, 1 Stat. 50, 51 & n.(a). Although the enabling statute spoke of "courts" and "judges," the historical record shows that Congress did not consider these tribunals to be part of the Article III judiciary. The Judiciary Act of 1789 contained no mention of the territorial courts, see Act of Sept. 24, 1789, ch. 20, 1 Stat. 73, and the Salary Act of 1789 listed the three judges of the "western territory" as "Executive Officers." Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787-1801, 115 Yale L.J. 1256, 1288 (2006). This Court later confirmed that understanding in Am. Ins. Co. v. Canter, in which it described these tribunals as "legislative Courts." 26 U.S. (1 Pet.) 511, 546 (1828). And in McAllister v. United States, 141 U.S. 174 (1891), the Court confirmed that Congress had broad authority to prescribe tenure protections for judges of legislative courts, including by requiring the "consent of the Senate" before the President could effect their removal. Id. at 186.

In 1855, Congress created the Court of Claims-the COFC's predecessor-whose judges likewise held office "during good behavior." Act of Feb. 24, 1855, ch. 122, 10 Stat. 612. At first, the Court of Claims was "nothing more than an administrative or advisory body" entrusted with hearing private monetary claims against the United States and making recommendations to Congress. Williams v. United States, 289 U.S. 553, 565 (1933). Over time, however, the court accreted additional powers. Thus, in 1863, Congress granted the court the power to issue final orders, subject to a right of appeal to this Court. Act of March 3, 1863, ch. 92, § 5, 12 Stat. 765, 766. And in 1887, Congress enacted the Tucker Act which empowered the court to hear "[a]ll claims founded upon the Constitution." Act of Mar. 3, 1887, § 1 ch. 359, 24 Stat. 505.

This Court, in turn, repeatedly recognized Congress's authority to constitute the Court of Claims as a "legislative court"-thereby confirming that Congress may vest substantial adjudicatory authority in a non-Article III tribunal while simultaneously shielding its members from at-will removal by the President. See, e.g., Ex parte Bakelite Corp., 279 U.S. 438, 452 (1929); Williams, 289 U.S. at 565.

In 1890, Congress created the Board of General Appraisers-a body nested within the Treasury and tasked with adjudicating disputes over import duties. Customs Administrative Act of 1890, ch. 407, 26 Stat. 131, 136-37. At inception, the Board was classified as an "executive agency," not a legislative court. Ex parte Bakelite Corp., 279 U.S. at 458; see also Aditya Bamzai, Taft, Frankfurter, and the First Presidential For-Cause Removal, 52 U. Rich. L. Rev. 691, 717 (2018) (summarizing legislative history showing that the Congress considered appraisers to be "executive branch officers, not judges"). Even so, this Court assumed that Congress could confine presidential removal to cases of "inefficiency, neglect of duty, or malfeasance in office." Shurtleff v. United States, 189 U.S. 311, 313-14 (1903),

To be sure, Shurtleff ultimately concluded that the President could remove a Board of General Appraisers member without cause, but only because the statute was not drafted to make "inefficiency, neglect of duty, or malfeasance in office" the sole grounds for removal. 189 U.S. at 316. Congress's response speaks volumes: It amended the statute to provide that the President could remove a Board member only on those three grounds "and no other." Act of May 27, 1908, sec. 3, § 31, 35 Stat. 403, 406; see also Bamzai, supra at 724-25.

Nearly two decades later, Congress used a similar formulation when it enacted the Board of Tax Appeals-the predecessor to today's Tax Court. Revenue Act of 1924, § 900(b), 43 Stat. 253, 337 (providing that any Board member "may be removed by the President for inefficiency, neglect of duty, or malfeasance in office, but for no other reason").

In 1948, Congress established the War Claims Commission to adjudicate claims by former prisoners of war, civilian internees, and certain religious organizations. War Claims Act of 1948, 62 Stat. 1240. Ten years later, in Wiener v. United States, 357 U.S. 349 (1958), this Court invalidated President Eisenhower's attempt to remove a member of that Commission without cause, notwithstanding the absence of any express statutory removal restriction. Looking to the "nature of the function that Congress vested in" the Commission, the Court concluded that Congress had created "an adjudicating body," and that it could therefore "be inferred that Congress did not wish to have hang over the Commission the Damocles' sword of removal by the President for no reason other than that he preferred to have on that Commission men of his own choosing." Id. at 353-54, 356. Nor did it matter that Congress had lodged that authority in a Commission within the Executive Branch: that choice, the Court explained, "did not alter the intrinsic judicial character of the task with which the Commission was charged." Id. at 355.

Relying on these precedents, Congress continued to mint independent, non-Article III tribunals throughout the second half of the twentieth century. Thus, in 1950, it created the CAAF's predecessor, the Court of Military Appeals to review certain sentences imposed by courts-martial. Act of May 5, 1950, 64 Stat. 107; see 10 U.S.C. § 942(c) (permitting removal for neglect of duty, misconduct, or mental or physical disability, but not "for any other cause").

In 1970, Congress created the OSHRC to adjudicate challenges to OSHA enforcement actions. Occupational Safety and Health Act of 1970, § 12(a), 84 Stat. 1590, 1601. As originally conceived, the Act would have concentrated rulemaking, enforcement, and adjudicatory authority in the Secretary of Labor. See S. 2193, 91st Cong., 1st Sess. § 6 (1969). But after employers objected that such an arrangement risked biased enforcement, Congress opted for a bifurcated structure. It left rulemaking and enforcement to the Secretary, but vested adjudicatory authority in the OSHRC-an "autonomous, independent and quasi-judicial body" whose members were protected against at-will removal. Dole v. Occupational Safety & Health Review Comm'n, 891 F.2d 1495, 1498 (10th Cir. 1989), rev'd on other grounds sub nom. Martin v. Occupational Safety and Health Review Comm'n, 499 U.S. 144 (1991); 29 U.S.C. § 661(b).

Congress followed the same model when it created the FMSHRC in 1977. See Federal Mine Safety and Health Amendments Act of 1977, 91 Stat. 1290. It vested the Secretary with authority to promulgate mine-safety standards, conduct inspections, and issue citations for violations, see 30 U.S.C. §§ 811, 813, 814, but assigned adjudication of enforcement challenges to a separate, independent commission. See id. §§ 815(d), 823(b); see also Prairie State Generating Co. LLC v. Sec'y of Labor, 792 F.3d 82, 85-86 (D.C. Cir. 2015) (observing that "[t]he Mine Act's split-function approach contrasts with the more typical administrative structure, in which rulemaking and adjudication are performed within a single agency").

More recently still, Congress created the CAVC to review decisions of the Board of Veterans' Appeals. Veterans' Judicial Review Act of 1988, 102 Stat. 4105. Consistent with longstanding practice, the statute provides that the President may remove a CAVC judge only for cause. 38 U.S.C. § 7253(f).

1. A Rule Invalidating MSPB Removal Protections Would Put All Non-Article III Tribunals at Risk

The MSPB fits comfortably within the longstanding tradition of non-Article III tribunals whose members are shielded from at-will removal. Following the framework used in the Occupational Safety and Health Act and the Federal Mine Safety and Health Amendments Act, Congress built an internal separation of functions into the civil service system. Thus, it vested the power to "execut[e], administer[], and enforce[] . . . civil service rules and regulations" and the power to investigate and prosecute certain forms of agency misconduct in the Office of Personnel Management and the Office of Special Counsel, respectively. 5 U.S.C. §§ 1103(a)(5)(A), 1212. And it vested adjudicatory power in the MSPB.

The upshot is that the MSPB does "not perform any quintessentially executive functions." 160 F.4th 1235, 1269 (Pan, J., dissenting). The MSPB does not make policy, promulgate substantive rules, investigate wrongdoing, or prosecute claims. It waits for others to invoke its jurisdiction and then, like other non-Article III tribunals, simply "appl[ies] law to facts." Id. at 1267, 1269.

The majority nonetheless concluded that the MSPB wielded "significant executive power that cannot be characterized as quasi-legislative or quasi-judicial." 160 F.4th at 1257. In reaching this conclusion, the majority committed a foundational error: It reflexively classified any authority not given to the FTC at the time of Humphrey's Executor as "executive." Id. at 1254-57. But this Court has never held that the 1935 version of the FTC defines the outermost bounds of adjudicatory power than can be vested in an agency before its members must be removable at will. And if the majority's reasoning is correct, then no Article I court or independent adjudicatory agency is safe, since all of them possess some-if not all-of the same powers that the majority relied on in striking down the MSPB's removal restrictions.

i. "Rulemaking" Authority

The majority classified the MSPB's authority to "promulgate regulations 'for the performance of its functions'" as an executive power. 160 F.4th at 1254 (quoting 5 U.S.C. § 1204(h)). But almost every independent, non-Article III tribunal contains a similar grant of authority. See, e.g., 26 U.S.C. § 7453 (Tax Court); 38 U.S.C. § 7264(a) (CAVC); 28 U.S.C. § 2503(b) (COFC); 10 U.S.C. § 944 (CAAF); 30 U.S.C. § 823(d)(2) (FMSHRC); 29 U.S.C. § 661(g) (OSHRC).

Nor is there anything "executive" about this authority. Section 1204(h) merely empowers the MSPB to promulgate its own rules of procedure-an authority that is a hallmark of "judicial power." Ortiz v. United States, 585 U.S. 427, 460 (2018) (Thomas, J., concurring). Indeed, none of the rules that have been promulgated under this provision can plausibly be described as "substantive." See, e.g., 5 C.F.R. §§ 1201.14 (electronic filing procedures), 1201.21 (contents of notice of appeal), 1201.23 (computation of time for deadlines), 1201.26 (service of pleadings), 1201.27 (class appeals), 1201.34 (intervenors and amicus curiae); 1201.43 (sanctions); 1201.73 (discovery procedures); 1201.115 (criteria for granting petition).

The majority also pointed to the MSPB's ability to prescribe regulations "'for the purpose of section 7521,'" which governs the removal, suspension, and reduction of pay for ALJs. See 160 F.4th at 1254 (quoting 5 U.S.C § 1305). But that grant is vanishingly narrow. Section 7521 excludes actions taken for national-security reasons, reductions in force, and disciplinary complaints. 5 U.S.C. § 7521(b)(1)(A)-(C). The majority itself acknowledged that it was "unclear" what rulemaking authority this provision actually confers, 160 F.4th at 1254-an admission that, under constitutional avoidance principles, required the majority to assume that the authority was insignificant. What's more, if that ill-defined residue is enough to make the MSPB's powers "executive," then the same must be true of the Tax Court, the CAVC, and the COFC-all of which are directed by statute to prescribe rules governing the filing and investigation of complaints against their judges. See 26 U.S.C. § 7466; 38 U.S.C. § 7253(g); 28 U.S.C. § 363.

ii. Adjudicatory Powers

Next, the majority concluded that the MSPB's adjudicatory powers were executive because they exceeded those exercised by the FTC in Humphrey's Executor in three respects: "finality, breadth of jurisdiction, and breadth of remedial authority." 160 F.4th at 1254. But if those features suffice to render the MSPB's powers "executive," then every independent, non-Article III tribunal exercises a constitutionally impermissible amount of executive power as well.

Finality. The majority took issue with the fact that the MSPB's decisions were final and enforceable unless set aside by a court of appeals. Id. But the same is true for essentially all non-Article III tribunals. See, e.g., 26 U.S.C. § 7481, 7482 (Tax Court); 28 U.S.C. §§ 1295(a)(3), 2519 (COFC); 38 U.S.C. § 7292 (CAVC); 29 U.S.C. §§ 659(c), 660(a)-(b) (OSHRC); 30 U.S.C. § 823(d)(1) (FMSHRC). Indeed, this Court held that the War Claims Commissions had an "intrinsic judicial character" even though its decisions were not subject to further review "by any other official of the United States or by any court by mandamus or otherwise." Wiener, 357 U.S. at 355 (internal quotation marks omitted).

Breadth of Jurisdiction. The majority's conclusion that the MSPB's jurisdictional breadth qualified as an "executive power" is equally mistaken. To start, the MSPB is hardly the "jack-of-all-trades" the majority made it out to be. 160 F.4th at 1255. The MSPB operates only in the "specialized realm of employment law," Id. at 1270 (Pan, J., dissenting), and even there its jurisdiction is sharply confined. It may adjudicate claims only when brought by a qualifying "employee"-a term that excludes, among others, political appointees and civil servants serving in "probationary" or "trial period[s]" of employment. 5 U.S.C. § 7511(a)(1); see also Roche v. MSPB, 596 F.3d 1375, 1383 (Fed. Cir. 2010).

The majority bolstered its conclusion by reciting a list of employment-law statutes the MSPB may apply in resolving claims. See 160 F.4th at 1255. But that proves nothing: Article III courts possess the broadest jurisdiction of any federal adjudicatory body-but that breadth of jurisdiction has never been thought to make their power any less judicial. Nor is the majority's analysis susceptible to any limiting principle that might help future courts determine how many statutes an adjudicatory body may apply before its members must be subject to at-will removal. On the majority's logic, the removal protections of the CAVC would be constitutionally suspect because that court applies the Honoring our PACT Act of 2022, 136 Stat. 1759, the Agent Orange Act of 1991, 105 Stat. 11, the Post-9/11 Veterans Educational Assistance Act of 2008, 122 Stat. 2357, the Veterans' Pension Act of 1959, 73 Stat. 432, and the Servicemembers' Group Life Insurance Enhancement Act of 2005, 119 Stat. 2045. See generally 38 C.F.R. § 20.104(a)-(b).

The same is true for the COFC, which has jurisdiction over "any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491(a)(1) (emphasis added).

The majority also concluded that the MSPB's adjudication of disciplinary claims "cannot plausibly be described as 'quasi-judicial'" because it involves the "application of a non-exclusive, twelve factor balancing test." 160 F.4th at 1255. But Article I courts deploy similarly complex multi-factor tests. The Tax Court, for example, uses a 13-factor test when distinguishing debt from equity, Recklitis v. Commissioner, 91 T.C. 874, 901 (1988), and a 9-factor test when determining the availability of a deduction. Dreicer v. Commissioner, 78 T.C. 642, 645 (1982); see also Pullins v. Commissioner, 136 T.C. 432, 448 (2011) (applying a nonexclusive 6-factor test to determine spousal tax liability). Bankruptcy courts use an 11-factor test when assessing whether a Chapter 13 repayment plan was proposed in good faith. In re Estus, 695 F.2d 311, 317 (8th Cir. 1982). And when considering a mandamus petition based on unreasonable agency delay, the CAVC uses a 6-factor test which, in the words of the court that first formulated, is "'hardly ironclad, and sometimes suffers from vagueness.'" Martin v. O'Rourke, 891 F.3d 1338, 1345 (Fed. Cir. 2018) (quoting Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984)).

Breadth of remedial authority. The majority concluded that any authority beyond the power to "simply order the offending agency to cease and desist" was executive in nature. 160 F.4th at 1255. But virtually every independent, non-Article III tribunal exercises remedial authority that extends well beyond bare issuance of cease-and-desist orders. The COFC, for example, has the power to order back pay, liquidated damages, and interest, Astor v. United States, 79 Fed. Cl. 303, 319-20 (2007), award consequential damages in breach of contract cases, Ind. Mich. Power Co. v. United States, 422 F.3d 1369, 1373 (Fed. Cir. 2005), reimburse expert witness fees, Gatto v. Sec'y of HHS, 2025 U.S. Claims LEXIS 1044, at *1 (Fed. Cl. Mar. 31, 2025), reinstate an employee or place them in the appropriate duty or retirement status, 28 U.S.C. § 1491(b), and grant injunctive relief in bid protest claims. Id. § 1491(b)(2). The Tax Court may order the IRS to refund overpayments plus interest, 26 U.S.C. § 6512(b)(2); and it may award "reasonable litigation costs," including attorney's fees, expert-witness expenses, and the cost of necessary studies or analyses. Id. § 7430(a), (c)(1), (d)(2). The CAVC can effectively order the Department of Veterans Affairs to pay out a benefit by reversing an adverse decision. 38 U.S.C. §§ 7252(a), 7261(a); see also Speigner v. Wilkie, 31 Vet. App. 41, 44 (2019) (awarding attorney's fees). And both the OSHRC and FMSHRC have broad authority to affirm, modify, or terminate a Secretary's citation or proposed penalty. 29 U.S.C. § 659(c), 30 U.S.C. §§ 815, 823(b)(1).

The majority appeared particularly troubled by the fact that the MSPB could award relief "on a wholesale basis." 160 F.4th at 1256 (citing Harris's reinstatement of 6,000 laid-off employees pending further administrative proceedings). But both the COFC and CAVC have the ability to award similarly expansive relief via class action. See, e.g., Barnes v. United States, 68 Fed. Cl. 492, 495 (2005) (certifying class consisting of thousands of navy employees alleging systematic failure to pay premium pay for short leaves); Godsey v. Wilkie, 31 Vet. App. 207, 213 (2019) (certifying mandamus proceeding by veterans alleging unreasonable delay in processing of benefits claims).

The majority's final conclusion-that the MSPB wields significant executive power by virtue of its ability to appear in district court and be named respondent, 160 F.4th at 1260-is equally misguided. The majority anchored on 5 U.S.C. § 1204(i), which allows the MSPB to appear in district court litigation brought against or by the Board. But there are only a handful of instances in which the MSPB would be in district court in the first place. See, e.g., 5 U.S.C. § 1204(c) (subpoena enforcement); Ocasio v. Merit Sys. Prot. Bd., 244 F. Supp. 3d 12, 14 (D.D.C. 2017) (defending against FOIA request). And the MSPB is only a respondent in disputes "solely" involving its "procedure or jurisdiction." Spruill v. MSPB, 978 F.2d 679, 684 (Fed. Cir. 1992) (emphasis added). Where an employee "seeks review of a final order or decision on the merits of the underlying personnel action" the named respondent is the agency. 5 U.S.C. § 7703(a)(2).

Nor does the ability to be named a respondent negate a body's "purely adjudicatory" status, as the majority suggested. Prior to 1996, district court judges were "frequently named as defendants when litigants seek writs of mandamus, prohibition, and the like." In re Justices of Supreme Court, 695 F.2d 17, 23 (1st Cir. 1982). And while that practice was ended with the 1996 amendments to the Federal Rules of Appellate Procedure, the rules still allow a court of appeals to invite or order the trial-court judge to address a petition for mandamus. Fed. R. App. P. 21(b)(4). Nor is the MSPB the only non-Article III tribunal that can be named a respondent. See, e.g., Aka v. United States Tax Court, 854 F.3d 30 (D.C. Cir. 2017) (Tax Court named respondent in defending its attorney disbarment orders); Jones Bros. v. Sec'y of Labor, Mine Safety & Health Admin., 68 F.4th 289, 294 n.2 (6th Cir. 2023) (Secretary of Labor and FMSHRC named as separate respondents and appeared with separate counsel); see also MFA Enters. v. OSHRC, 153 F.4th 647, 649 (8th Cir. 2025); Dole, 891 F.2d 1495 (OSHRC listed as respondent in action brought by Secretary of Labor).

* * *

In short, the majority's reasoning does not stop with the MSPB. Most of the MSPB's powers that the majority characterized as "executive" have been exercised by independent non-Article III tribunals since the Founding. This Court should not adopt a rule that would upend centuries of practice, call into question the independence of Article I courts, and hamstring Congress's ability to insulate adjudicatory tribunals from political interference.

II. If the MSPB Possesses Any Impermissible Executive Powers, The Proper Remedy is To Sever Those Powers, not Invalidate Its Removal Protections

Assuming, arguendo, that the MSPB possesses some quantum of executive power that is incompatible with removal restrictions, the proper remedy is not to sever the removal restrictions, but to cleave off the excess executive power. See United States v. Arthrex, Inc., 594 U.S. 1 (2021).

When deciding which portion of the law to sever, the relevant question is which statutory "remainder" is most "consistent with Congress' basic objectives in enacting" the CSRA: one where the MSPB operates without independence or one where the MSPB is left with only its adjudicatory powers. United States v. Booker, 543 U.S. 220, 258-59 (2005) (internal quotation marks and citations omitted). The legislative history and structure of the CSRA make clear that MSPB independence was central to Congress's design, and that the statute could not function as intended if the President could remove Board members at will.

By 1978, widespread reports of political manipulation within the civil service and retaliation against whistleblowers had produced mounting pressure for reform. Developments in the Law-Public Employment, 97 Harv. L. Rev. 1611, 1631-32 (1984). President Carter and Congress traced the problem to a structural defect: a single entity-the Civil Service Commission ("CSC"), whose members were removable "at any time for any reason," 124 Cong. Rec. 27,536 (1978)-was entrusted with both enforcing civil service rules and adjudicating federal employee claims. As President Carter explained in his message proposing the CSRA, the CSC had been entrusted with "inherently conflict responsibility." Jimmy Carter, Federal Civil Service Reform: Message to the Congress (Mar. 2, 1978). It served as "manager, rulemaker, prosecutor and judge" and, as a result, was unable to do any of those jobs "effectively." Id.

President Carter proposed abolishing the CSC and replacing it with three separate entities: OPM, which would act as the "center for personnel administration," a Special Counsel to "investigate and prosecute political abuses and merit system violations," and a board to act as an "adjudicatory arm" that would provide "independent and impartial protection to employees." Id. (emphasis added).

After an "exhaustive" five-month study of the federal workforce, Congress embraced and enacted President Carter's proposal, the "cornerstone" of which was a "strong and independent" MSPB. S. Rep. No. 95-969, at 1-2, 7 (1978). The legislative history confirms that Congress considered the MSPB's independence paramount. The CSRA co-sponsor explained that "much effort" was dedicated to ensuring that the new scheme "absolutely insure[d] against any form of destructive political manipulation" of the federal civil service. 124 Cong. Rec. 27566 (1978). And the Senate Committee Report explained that the MSPB was designed to function "independent of any Presidential directives" and "insulated from the kind of political pressures that [had] led to violations of merit principles in the past." Id. at 7.

Congress took multiple steps to protect the MSPB's independence. It provided that MSPB members would serve 7-year terms, thus limiting the number of appointments any one President could make. See 5 U.S.C. § 1202(a). It established that no more than two of the three members could belong to the same political party to protect against partisan tilt. Id. § 1201. And it ensured that the MSPB chair's appointment of personnel would "not be subject to the approval or supervision of the Office of Personnel Management or the Executive Office of the President." Id. § 1204(j).

Congress understood, however, that these protections would be mere formalities if the Board members could be removed at the President's whim. Without removal restrictions, the President could reconstitute the entire Board in one fell swoop. He could bring the MSPB proceedings to a halt by refusing to appoint replacements and denying it a quorum. See generally Nicholas Bednar & Todd Phillips, Commission Quorums, 78 Stan. L. Rev. __ (forthcoming 2026). Congress likewise understood that the Board members who operated under the "Damocles' sword of removal," Wiener, 357 U.S. at 356, would inevitably face pressure to align their conduct with the President's perceived preferences.

Congress made a series of design choices that were premised on the assumption that aggrieved employees would have recourse to an impartial MSPB that operated above the political fray. As the Senate Committee Report explained, "absent such a mandate for independence for the merit board, it is unlikely that [it] would have granted the Office of Personnel Management the power it has or the latitude to delegate personnel authority to the agencies." Id. (emphasis added). The House Committee Report expressed the same sentiment. H.R. No. 95-1403, at 106 (1978) ("The independence and authority of MSPB and its ability to protect the legitimate concerns of employees is the overriding factor on how much flexibility can be provided to managers" to discipline or remove personnel).

To take another example: one of the problems that Congress sought to solve with the CRSA was the "'wasteful and irrational'" "double layer of judicial review" that allowed federal employees to challenge agency actions in district courts across the country. Elgin v. Department of the Treasury, 567 U.S. 1, 13-14 (2012) (quoting Fausto, 484 U.S. at 455). That review process, in Congress's estimation, had become "so lengthy and complicated that managers often avoid[ed] taking disciplinary action" against employees even when it was clearly warranted. S. Rep. No. 95-969, at 9.

Congress addressed this inefficiency by divesting district court of jurisdiction over most federal work force suits and channeling those claims through the MSPB, whose decisions would be subject to exclusive review by the Federal Circuit. Elgin, 567 U.S. 5, 14. That decision, however, was "predicated on the existence of a functioning and independent MSPB." Nat'l Ass'n of Immigr. Judges v. Owen, 139 F.4th 293, 302 (4th Cir. 2025). Tellingly, courts are now grappling with whether this channeling scheme can survive in a world where the MSPB's members are removable at will. See, e.g., id. at 299-300 (remanding for fact-finding to determine if district courts now have jurisdiction over CSRA claims due to attacks on the MSPB's independence); Elev8 Balt., Inc. v. Corp. for Nat'l & Cmty. Serv., 804 F. Supp. 3d 524, 556 (D. Md. 2025) (concluding that CSRA's implied preclusion no longer operative because MSPB is not functioning as Congress intended); see generally Benjamin Stern & Hampton Dellinger, When One Door Closes: What Federal Courts, and Congress, Owe Federal Workers as Independent Agencies Fall, 15 Regul. Rev. in Depth 11, 18 (2026).

Severability principles require courts to take a "tailored approach" that does the least damage to Congress's enactments. Arthrex, 594 U.S. at 25. That rule "reflects the confined role of the Judiciary in our system of separated powers" and "manifests the Judiciary's respect for Congress's legislative role." Barr v. American Ass'n of Political Consultants, Inc., 591 U.S. 610, 626 (2020). Applied here, those principles require the Court to excise any marginal executive authority the MSPB may possess, not to dismantle a core structural protection on which the CSRA was built.

CONCLUSION

For the foregoing reasons, the petition for certiorari should be granted and the decision below reversed.