Petition for Writ of Certiorari — Cathy A. Harris, Petitioner v. Scott Bessent, Secretary of the Treasury, et al.

No. 25-____

IN THE

Supreme Court of the United States

CATHY A. HARRIS,

Petitioner,

v.

SCOTT BESSENT, SECRETARY OF THE TREASURY, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the D.C. Circuit

PETITION FOR A WRIT OF CERTIORARI

NATHANIEL A.G. ZELINSKY

SAMANTHA BATEMAN

JAMES I. PEARCE

WASHINGTON LITIGATION

GROUP

1717 K St. NW, Suite 1120

Washington, DC 20006

NEAL KUMAR KATYAL

Counsel of Record

MILBANK LLP

1101 New York Ave., NW

Washington, DC 20005

(202) 835-7500

nkatyal@milbank.com

KERRIE DIANE RIGGS

JEREMY D. WRIGHT

KATOR, PARKS, WEISER &

WRIGHT, PLLC

1150 Connecticut Ave., NW

Suite 705

Washington, DC 20036

LINDA MARIE CORREIA

CORREIA & PUTH, PLLC

1400 16th Street, NW

Suite 450

Washington, DC 20036

Counsel for Petitioner

QUESTIONS PRESENTED

1. Whether Congress may provide by statute that

members of the Merit Systems Protection Board—an

adjudicatory body—“may be removed by the President

only for inefficiency, neglect of duty, or malfeasance in

office.” 5 U.S.C. § 1202(d).

2. Whether, to the extent the Merit Systems Protection Board possesses some minimal non-adjudicatory powers, the appropriate remedy is to sever that

authority rather than invalidate the for-cause removal provision.

(i)

ii

PARTIES TO THE PROCEEDING

Petitioner in this Court is Cathy A. Harris, in her

personal capacity and in her official capacity as Member of the Merit Systems Protection Board.

Respondents are Scott Bessent, in his official capacity as Secretary of the Treasury; Trent Morse, in

his official capacity as Deputy Assistant to the President and Deputy Director of the White House Presidential Personnel Office; Sergio Gor, in his official capacity as Director of the White House Presidential

Personnel Office; Henry Kerner, in his official capacity as Acting Chairman of the Merit Systems Protection Board; Donald J. Trump, in his official capacity

as President of the United States of America; and Russell T. Vought, in his official capacity as Director of

the Office of Management and Budget.

iii

STATEMENT OF RELATED PROCEEDINGS

The case was before the U.S. Court of Appeals for

the District of Columbia Circuit as Harris v. Bessent,

No. 25-5055, and before the U.S. District Court for the

District of Columbia as Harris v. Bessent, No. 1:25-cv00412-RC.

The case was previously before this Court in

Trump v. Wilcox, No. 24A966, and Harris v. Bessent,

No. 25-312.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................i

PARTIES TO THE PROCEEDING ........................... ii

STATEMENT OF RELATED PROCEEDINGS....... iii

TABLE OF CONTENTS ............................................. v

INTRODUCTION ........................................................ 1

OPINIONS AND ORDERS BELOW .......................... 4

JURISDICTION .......................................................... 4

STATUTES INVOLVED ............................................. 5

STATEMENT .............................................................. 5

A. The Merit Systems Protection Board .............. 5

B. District Court Proceedings ............................... 9

C. Stay Proceedings ............................................ 10

D. Trump v. Slaughter ........................................ 12

E. D.C. Circuit Merits Decision .......................... 13

REASONS FOR GRANTING THE PETITION ....... 17

I. THE MERIT SYSTEMS PROTECTION BOARD’S

REMOVAL PROVISIONS ARE CONSTITUTIONAL ....... 18

A. Purely Adjudicatory Bodies Sound In A

Unique Constitutional Tradition ................... 18

B. The Merit Systems Protection Board Is

Purely Adjudicatory........................................ 24

C. If The Merit Systems Protection Board

Has Some Impermissible Authority, It

Is Severable..................................................... 29

II. THIS CASE WARRANTS THIS COURT’S REVIEW ....... 31

CONCLUSION .......................................................... 34

APPENDIX

v

TABLE OF AUTHORITIES

Page(s)

CASES:

Am. Hosp. Ass’n v. NLRB,

499 U.S. 606 (1991) ............................................... 14

Am. Ins. Co. v. 356 Bales of Cotton,

26 U.S. 511 (1828) ........................................... 17, 19

Blodgett v. Holden,

275 U.S. 142 (1927) ............................................... 31

Bowsher v. Synar,

478 U.S. 714 (1986) ................................................. 8

County of Maricopa v. Lopez-Valenzuela,

575 U.S. 1044 (2015) (mem.) ................................. 31

Douglas v. Veterans Admin.,

5 M.S.P.R. 280 (1981) ...................................... 27, 28

Ex parte Bakelite Corp.,

279 U.S. 438 (1929) ..................................... 2, 18, 20

FCC v. Consumers’ Rsch.,

606 U.S. 656 (2025) ............................................... 23

Free Enter. Fund v. PCAOB,

561 U.S. 477 (2010) ............................................... 17

Freytag v. Comm’r of Internal Revenue,

501 U.S. 868 (1991) ......................................... 17, 23

Glidden Co. v. Zdanok,

370 U.S. 530 (1962) ............................................... 21

Harris v. Bessent,

146 S.Ct. 76 (2025) (mem.) .................................... 12

Harrow v. Dep’t of Def.,

601 U.S. 480 (2024) ..................................... 3, 16, 25

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Humphrey’s Executor v. United States,

295 U.S. 602 (1935) ........................... 1, 9, 10, 19, 21

Kaplan v. Conyers,

733 F.3d 1148 (Fed. Cir. 2013) (en banc) ................ 8

Margolin v. Nat’l Ass’n of Immigr. Judges,

No. 25A662, 2025 WL 3684278

(U.S. Dec. 19, 2025) (mem.) ............................. 32, 33

McAllister v. United States,

141 U.S. 174 (1891) ............................................... 20

Myers v. United States,

272 U.S. 52 (1926) ............................................. 6, 20

N. Pipeline Constr. Co. v. Marathon Pipe Line

Co.,

458 U.S. 50 (1982) ........................................... 17, 18

NLRB v. Curtin Matheson Sci., Inc.,

494 U.S. 775 (1990) ............................................... 14

Ortiz v. United States,

585 U.S. 427 (2018) ......................................... 17, 23

Perry v. MSPB,

582 U.S. 420 (2017) ................................................. 8

Phelps Dodge Corp. v. NLRB,

313 U.S. 177 (1941) ............................................... 25

Republic Aviation Corp. v. NLRB,

324 U.S. 793 (1945) ............................................... 14

SEC v. Jarkesy,

603 U.S. 109 (2024) ............................................... 17

Trump v. Slaughter,

146 S.Ct. 18 (2025) (mem.) .................................... 12

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Trump v. Wilcox,

145 S. Ct. 1415 (2025) ............................... 11, 12, 32

Tunik v. MSPB,

407 F.3d 1326 (Fed. Cir. 2005) ........................ 15, 25

Tunik v. Soc. Sec. Admin.,

93 M.S.P.R. 482 (2003) .......................................... 26

United States v. Arthrex, Inc.,

594 U.S. 1 (2021) ............................................. 29, 30

United States v. Perkins,

116 U.S. 483 (1886) ..................................... 6, 10, 29

Wiener v. United States,

357 U.S. 349 (1958) ............1, 3, 9, 17, 19, 22, 24, 28

Williams v. United States,

289 U.S. 553 (1933) ................................... 20, 21, 23

Withrow v. Larkin,

421 U.S. 35 (1975) ........................................... 23, 24

CONSTITUTION:

U.S. Const. art. III, § 1 ............................................. 20

STATUTES:

5 U.S.C. § 553(b)(A) .................................................. 26

5 U.S.C. § 1202(a) ....................................................... 5

5 U.S.C. § 1202(d) ................................................... 5, 7

5 U.S.C. § 1204(a)(1) .................................................. 7

5 U.S.C. § 1204(a)(3) .................................................. 8

5 U.S.C. § 1204(e)(2)(A) ........................................ 8, 27

5 U.S.C. § 2302(b)(1)(E) ............................................. 7

5 U.S.C. § 2302(b)(8) .................................................. 7

viii

TABLE OF AUTHORITIES—Continued

Page(s)

5 U.S.C. § 3592(a) ....................................................... 8

5 U.S.C. § 7511(b) ....................................................... 8

5 U.S.C. § 7511(b)(2) .................................................. 8

5 U.S.C. § 7703 ........................................................... 8

28 U.S.C. § 331 ........................................................... 8

28 U.S.C. § 1254(1) ..................................................... 5

Act of Apr. 7, 1798,

ch. 28, § 3, 1 Stat. 549 ..................................... 18, 19

Act of Feb. 24, 1855,

ch. 122, § 1, 10 Stat. 612 ....................................... 19

Act of June 10, 1890,

ch. 407, § 12, 26 Stat. 131 ..................................... 19

Act of June 30, 1906,

Pub. L. No. 59-403, § 7, 34 Stat. 814 .................... 19

Act of May 28, 1926,

Pub. L. No. 69-304, § 2, 44 Stat. 669 .................... 19

An Act to amend title 28, United States Code,

Pub. L. No. 83-158, 67 Stat. 226 (1953) ................ 21

An Act to provide for the Government of the

Territory North-West of the river Ohio,

ch. 8, 1 Stat. 50 (1789) ..................................... 18, 19

Civil Service Reform Act of 1978,

Pub. L. No. 95-454, 92 Stat. 1111 ....................... 8, 9

Federal Courts Improvement Act of 1982,

Pub. L. No. 97-164, § 105, 96 Stat. 25 .................. 21

Pendleton Act,

ch. 27, 22 Stat. 403 (1883) ....................................... 6

ix

TABLE OF AUTHORITIES—Continued

Page(s)

Revenue Act of 1924,

Pub. L. No. 68-176, § 900(b), 43 Stat. 253 ............ 19

Whistleblower Protection Act of 1989,

Pub. L. No. 101-12, 103 Stat. 16 ............................. 9

REGULATIONS & RULES:

Fed. R. App. P. 21(b)(4) ............................................ 27

Practices and Procedures, 63 Fed. Reg. 42,685

(Aug. 11, 1998) ....................................................... 25

S. Ct. R. 10(c) ............................................................ 31

LEGISLATIVE MATERIALS:

H. Comm. on Post Office & Civil Serv., 94th

Cong., A Self-Inquiry into Merit Staffing: Report of the Merit Staffing Review Team,

United States Civil Service Commission

(Comm. Print 1976) ............................................. 6, 7

S. Rep. No. 95-969 (1978),

as reprinted in 1978 U.S.C.C.A.N. 2723 ........... 7, 30

Subcomm. on Manpower & Civil Serv. of the

H. Comm. on Post Office & Civil Serv., 94th

Cong., Documents Relating to Political

Influence in Personnel Actions at the Small

Business Administration (Comm. Print 1975) ....... 6

OTHER AUTHORITIES:

Alexander M. Bickel, The Least Dangerous

Branch: The Supreme Court at the Bar of

Politics (1962) ........................................................ 23

Patricia Wallace Ingraham, The Foundation of

Merit: Public Service in American Democracy

(1995) ............................................................... 5, 6, 7

x

TABLE OF AUTHORITIES—Continued

Page(s)

The Merit Systems Protection Board’s Authority to Adjudicate Constitutional Questions

within an Administrative Proceeding, 49 Op.

O.L.C. (Sep. 26, 2025) (slip op.)............................. 32

IN THE

Supreme Court of the United States

No. 25-____

CATHY A. HARRIS,

Petitioner,

v.

SCOTT BESSENT, ET AL.

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the D.C. Circuit

PETITION FOR A WRIT OF CERTIORARI

INTRODUCTION

In Trump v. Slaughter, No. 25-332, this Court is

considering whether to overturn Humphrey’s Executor

v. United States, 295 U.S. 602 (1935), and permit the

President to remove at will the members of the Federal Trade Commission (FTC), an independent agency

that makes policy. This petition presents the critical

question that Slaughter does not pose: whether Congress may enact a for-cause removal statute for a

purely “adjudicatory body” that does not make policy,

and instead applies the law to facts in discrete cases.

Wiener v. United States, 357 U.S. 349, 356 (1958).

Such adjudicatory bodies—which are sometimes referred to as “legislative courts” or “Article I courts”—

(1)

2

have existed since the Founding, and sound in a

unique constitutional tradition separate and apart

from Humphrey’s Executor. But in the decision below,

a split panel of the D.C. Circuit blew past this Court’s

precedent; invalidated the structure of one important

tribunal; and, in doing so, provided a roadmap to invalidate other adjudicatory bodies. The Court should

grant this petition and hear this case, as it presents

the question bound up with but not squarely posed in

Slaughter. At minimum, the Court should hold the

petition, and then vacate the judgment and remand in

light of Slaughter.

Petitioner Cathy Harris is a member of the Merit

Systems Protection Board (MSPB) whom the President purported to remove in February 2025. Like FTC

commissioners, the MSPB’s three members may only

be removed for cause. Unlike the FTC, however, the

MSPB does not launch investigations, promulgate

substantive rules or regulations, fill up vague statutes, or otherwise engage in policymaking. Instead,

the MSPB is a quintessential “legislative court[ ].” Ex

parte Bakelite Corp., 279 U.S. 438, 449 (1929). It

hears appeals from civil servants and operates by deciding specific cases brought before it.

There is a long history of non-Article III adjudicatory bodies like the MSPB. In Slaughter, the United

States recognized that for-cause removal statutes for

at least some such bodies are constitutional. In the

decision below, the D.C. Circuit likewise recognized

the strong arguments for allowing “Congress” to “restrict the President’s ability to remove officers with

solely adjudicatory functions.” Pet. App. 39a.

The D.C. Circuit nevertheless invalidated the

MSPB’s structure, in a decision issued just three days

before this Court heard oral argument in Slaughter.

3

The D.C. Circuit reached that unprecedented result

by concluding—based in part on arguments the government did not advance—that the MSPB has “policymaking responsibilities.” Pet. App. 39a.

The D.C. Circuit panel is wrong. The MSPB does

not make policy. Full stop. As Judge Pan underscored

in her dissent, the Board is “purely adjudicatory.” Pet.

App. 42a. In fact, two years ago, this Court described

the MSPB as “established to adjudicate federal employment disputes.” Harrow v. Dep’t of Def., 601 U.S.

480, 482 (2024) (emphasis added). Many of MSPB’s

features that the D.C. Circuit deemed impermissible—such as the ability to issue final decisions—are

quintessential judicial functions. But if the D.C. Circuit was correct, and the MSPB or another legislative

court truly does contain some vestigial non-adjudicatory function, the appropriate remedy is not to allow

the president to remove its adjudicators. The D.C.

Circuit instead should have severed the offending authority, and left the essential aspect of the MSPB—its

adjudicatory independence—intact.

It is imperative this Court hear this case. The decision below puts at risk not only the MSPB, but also

other legislative courts like the Tax Court and the

Court of Appeals for Veterans Claims. And should the

Court invalidate the statute at issue in Slaughter, the

attacks on these legislative courts will only grow. The

government’s strategy throughout these proceedings,

moreover, has been to elide the MSPB with policymaking bodies and hope that no one notices the differences. That is not a serious way to decide once-in-ageneration constitutional questions. But it has serious consequences. Every Article I court now lives underneath “the Damocles’ sword of removal.” Wiener,

357 U.S. at 356. The President can now demand a Tax

4

Court judge reward his allies or penalize his opponents, for example, and fire the judge if she refuses.

These concerns are not hypothetical. They are happening right now at the MSPB. Over the past year,

the government terminated hundreds of civil servants

in ways that appear to facially violate landmark civil

service statutes. In September 2025, the Office of Legal Counsel directed the MSPB how to rule in pending

cases challenging the terminations—an instruction

backed by the not-so-subtle threat those members will

face Petitioner’s fate should they refuse. This is an

astonishing assault on the ability of the MSPB’s members to apply the law without fear or favor—which is

the whole purpose of that adjudicatory tribunal.

The Court should not leave the D.C. Circuit’s decision as the last word on the constitutionality of this

Article I court. It should grant the petition and hear

this case. At minimum, the Court should hold the petition, and grant, vacate, and remand in light of the

decision in Slaughter.

OPINIONS AND ORDERS BELOW

The D.C. Circuit’s decision, Pet. App. 1a-90a, is reported at 160 F.4th 1235. The district court’s decision,

Pet. App. 93a-135a, is reported at 775 F.Supp.3d 164.

The order of the D.C. Circuit special panel granting a

stay pending appeal, Pet. App. 136a-257a, is not reported but is available at 2025 WL 980278. The order

of the en banc D.C. Circuit denying a stay, Pet. App.

258a-278a, is not reported but is available at 2025 WL

1021435.

JURISDICTION

The D.C. Circuit issued its judgment on December

5, 2025, Pet. App. 1a-40a, and denied a timely filed

petition for rehearing and rehearing en banc on

5

January 9, 2026, Pet. App. 279a-282a. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

5 U.S.C. § 1202(a) provides: “The term of office of

each member of the Merit Systems Protection Board

is 7 years.”

5 U.S.C. § 1202(d) provides: “Any member may be

removed by the President only for inefficiency, neglect

of duty, or malfeasance in office.”

STATEMENT

A. The Merit Systems Protection Board

1. The Merit Systems Protection Board reflects a

centuries-long effort to combat patronage in federal

employment. As its name suggests, the tribunal reflects a national consensus that career civil servants

should be hired and evaluated based solely on merit—

not impermissible factors like political affiliation,

race, sex, or nepotism.

At the Founding, George Washington embraced

principles of merit-based service. Patricia Wallace Ingraham, The Foundation of Merit: Public Service in

American Democracy 17 (1995). But Thomas Jefferson took the position that “party service was a valid

criterion for appointment to,” and removal from, public service. Id. at 18. By the Civil War, a spoils system

had taken hold. The effects were “tragic,” undermining “the effectiveness of the Union army and” “federal

government” during the war. Id. at 22. President

Grant “ran on a reform platform,” but his administration faced “pressure from members of Congress looking for patronage appointments.” Id. at 24. In 1871,

Congress authorized a short-lived Civil Service Commission that shuttered two years later. Id.

6

After President Garfield’s assassination by a

would-be office-seeker, Congress passed the Pendleton Act in 1883, which established a Civil Service

Commission of three members removable by the President at will. Id. at 25-27; ch. 27, 22 Stat. 403, 403.

Just a few years later, this Court upheld Congress’s

authority to enact civil service statutes that regulated

the circumstances in which the executive branch may

remove civil servants. See United States v. Perkins,

116 U.S. 483, 485 (1886). In Myers v. United States,

272 U.S. 52 (1926), Chief Justice Taft’s opinion for the

Court—the historical high-water mark for the removal power—reaffirmed the constitutionality of the

“Civil Service Law,” id. at 173.

America’s civil service initially encompassed only

a portion of the federal workforce, Ingraham, supra,

at 27, and Presidents continued to use “patronage removals and appointments” into the twentieth century,

id. at 33; see id. at 46. Meanwhile, the “Civil Service

Commission itself” soon emerged as “a problem” because it served inherently conflicting roles of “administer[ing] and protect[ing] the merit system” while

simultaneously “advis[ing] and assist[ing] the president in patronage matters.” Id. at 74.

Abuses in the Watergate Era brought matters to a

head. Contemporary investigations uncovered “flagrant violations” of merit principles for partisan “political interests,” creating employment processes that

“approximate[d] a patronage system.” Subcomm. on

Manpower & Civil Serv. of the H. Comm. on Post Office & Civil Serv., 94th Cong., Documents Relating to

Political Influence in Personnel Actions at the Small

Business Administration 11, 13 (Comm. Print 1975).

The corruption extended to the Civil Service Commission itself.

“[T]op Commission officials,”

7

“including Commissioners,” improperly sought to

place individuals in positions of employment; “Commission officials” succumbed to “high-level pressures”

to engage in patronage; and the Commission “failed to

respond effectively” to “political interference in the operation of the Federal merit system.” H. Comm. on

Post Office & Civil Serv., 94th Cong., A Self-Inquiry

into Merit Staffing: Report of the Merit Staffing Review Team, United States Civil Service Commission

39, 46, 65 (Comm. Print 1976).

2. President Jimmy Carter made civil service reform a component of his election campaign and spearheaded the passage of the Civil Service Reform Act.

Ingraham, supra, at 75. Central to reform was creating a “strong and independent” Merit Systems Protection Board free of the pressures that had plagued the

old Commission. S. Rep. No. 95-969, at 6-7 (1978), as

reprinted in 1978 U.S.C.C.A.N. 2723, 2728-29 (“Senate Report”).

The defining feature of the independent MSPB

was the for-cause removal statute protecting the

judges who serve on this adjudicatory body from interference and arbitrary removal. The “lack of adequate

protection” for the old Civil Service Commission had

been “painfully obvious during the civil service

abuses” “a few years” prior. Id. To combat that problem, Congress provided that the MSPB’s three members “may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.” 5

U.S.C. § 1202(d).

The MSPB functions as a court that adjudicates

federal employee appeals, including claims of political

discrimination and whistleblower retaliation. Id.

§§ 1204(a)(1), 2302(b)(1)(E), (b)(8). Its jurisdiction is

circumscribed to avoid encroaching on the President’s

8

core prerogatives. The Board may not hear appeals

by political appointees, id. § 7511(b), has limited authority regarding senior executive managers, id.

§ 3592(a), and cannot wade into national security issues, Kaplan v. Conyers, 733 F.3d 1148, 1166 (Fed.

Cir. 2013) (en banc). In addition, the President may

exempt certain positions from the MSPB’s jurisdiction

if they possess a “policy-determining, policy-making

or policy-advocating character.” 5 U.S.C. § 7511(b)(2).

The MSPB does not make policy or bring enforcement actions. The MSPB may conduct “studies” relating to the civil service, id. § 1204(a)(3), in much the

way the Judicial Conference issues annual reports to

Congress with “recommendations for legislation,” 28

U.S.C. § 331. But the MSPB lacks regulatory authority over civil service matters. The MSPB instead

hears discrete cases involving civil servants, applying

statutory law and precedent to the specific facts

brought before it. The MSPB’s decisions are in turn

reviewable by Article III courts, usually but not always the Federal Circuit. See 5 U.S.C. § 7703; see generally Perry v. MSPB, 582 U.S. 420, 423 (2017). The

Board lacks authority to enforce its own decisions.1

The MSPB’s history confirms its purely adjudicatory purpose. The Board’s predecessor—the Civil Service Commission—handled both personnel management and adjudications. In 1978, Congress split the

1 When originally established, the Board could order the withholding of pay from federal employees who refused to comply

with its decisions. 5 U.S.C. § 1204(e)(2)(A). But that mechanism

required the involvement of the Comptroller General, who is a

legislative officer. It became unconstitutional after Bowsher v.

Synar, 478 U.S. 714, 733-734 (1986), leaving the modern Board

without ability to enforce decisions unilaterally. See infra pp. 2627.

9

Commission into multiple entities, including: (1) the

Office of Personnel Management, to manage the federal workforce as a true organ of executive power; and

(2) the MSPB, as an adjudicatory authority. Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat.

1111, 1119, 1121.

In 1989, Congress further cleaved off the Office of

Special Counsel—a single-director-led entity that investigates and prosecutes violations of civil service

rules—into a separate executive branch agency.

Whistleblower Protection Act of 1989, Pub. L. No. 10112, 103 Stat. 16. The result, today, is that the Board

is a purely “adjudicatory body.” Wiener, 357 U.S. at

356.

B. District Court Proceedings

In 2022, Cathy Harris was confirmed as an MSPB

member. Her term expires March 1, 2028. On February 10, 2025, Harris received an email stating the

President had terminated her. The next day, she filed

this lawsuit.

Before the district court, the government did not

contest: (i) that the MSPB “does not establish policy,”

and does not “dictate or enforce policies regarding the

federal workforce”; (ii) that the Board “performs no investigations of external parties and does not prosecute

cases”; (iii) that the “Board does not initiate disciplinary actions” and lacks “enforcement units”; (iv) that

it “does not order other agencies to conduct investigations or to produce written reports”; and (v) that “over

95% of the decisions” of the Board are “unanimous.”

D. Ct. Dkt. No. 22-2, at 7-9.

The district court ruled for Harris, explaining that

the MSPB “conducts preliminary adjudications of federal employees’ claims, which may then be appealed

10

to Article III courts.” Pet. App. 107a (citing Humphrey’s Executor, 295 U.S. at 624). “The Board does not

regulate the conduct of private parties, nor does it possess its own rulemaking authority except in furtherance of its judicial functions.” Pet. App. 107a. “It cannot initiate its own personnel cases, but must instead

passively wait for them to be brought.” Pet. App. 107a

(quotation marks and citation omitted).

The district court also explained that Congress has

unique authority to establish the MSPB, in particular,

incident to its constitutional remit to “limit, restrict,

and regulate the removal” of career civil servants.

Pet. App. 109a (quoting Perkins, 116 U.S. at 485).

Congress exercised that power when it enacted the

Civil Service Reform Act, and the MSPB’s “independence” is “structurally inseparable from the” Act itself.

Pet. App. 109a.

C. Stay Proceedings

1. The government appealed and sought a stay in

the D.C. Circuit. From that point onward, the case

was consolidated for briefing and oral argument with

Wilcox v. Trump, No. 25-5057 (D.C. Cir.), which involves a removed member of the National Labor Relations Board (NLRB). Throughout these proceedings,

the government’s strategy has been to obfuscate the

differences between the MSPB and NLRB—avoiding

the distinct constitutional arguments that pertain to

adjudicatory bodies.

The D.C. Circuit initially granted the stay pending

appeal. Pet. App. 136a-257a. There was no majority

opinion. In a concurrence, Judge Walker explained

that he would strike down all removal protections unless the agency in question “is the identical twin of the

1935” FTC upheld in Humphrey’s Executor. Pet. App.

11

168a. In another concurrence, Judge Henderson

voted to grant the stay. But Judge Henderson stated

that the MSPB’s “powers are relatively more circumscribed” than the NLRB. Pet. App. 191a.

Judge Millett dissented. She emphasized that, in

“the government’s own words, the MSPB is ‘predominantly an adjudicatory body.’ ” Pet. App. 211a (quoting

Pet. App. 285a). The MSPB “has no investigatory or

prosecutorial role,” but is instead “passive and must

wait for appeals to be initiated.” Pet. App. 211a. The

MSPB “has no independent means of enforcing its orders,” and it does not make rules, except those “akin

to the federal rules of procedure and local rules that

courts adopt.” Pet. App. 212a-213a.

2. The en banc D.C. Circuit vacated the panel’s order and denied the government’s motion for a stay.

Pet. App. 258a-278a.

The government then filed an application in this

Court requesting a stay and seeking certiorari before

judgment. This Court granted a stay but denied review. According to the Court, “the Government faces

greater risk of harm from an order allowing a removed

officer to continue exercising the executive power than

a wrongfully removed officer faces from being unable

to perform her statutory duty.” Trump v. Wilcox, 145

S. Ct. 1415, 1415 (2025) (per curiam). The Court did

not opine on whether the government was likely to

succeed on the merits. The Court instead stated that

the President “may remove without cause executive

officers who exercise” “power on his behalf, subject to

narrow exceptions recognized by” “precedent[ ].” Id.

The Court determined that whether the MSPB “falls

within such a recognized exception” is a question “better left for resolution after full briefing and argument.” Id.

12

Justice Kagan dissented, joined by Justices Sotomayor and Jackson. Id. at 1416-21.

D. Trump v. Slaughter

On September 4, 2025, the Government filed an

application requesting a stay and seeking certiorari

before judgment in Trump v. Slaughter, a case involving an FTC commissioner whom the President purported to remove without cause. In response, Harris

filed a conditional petition for certiorari before judgment in this case, asking the Court to grant review in

her case if it granted Slaughter. The Court granted

certiorari before judgment in Slaughter and denied it

in this case. See Trump v. Slaughter, 146 S.Ct. 18

(2025) (mem.); Harris v. Bessent, 146 S.Ct. 76 (2025)

(mem.).

Harris subsequently filed an amicus brief in

Slaughter, in which she urged the Court to avoid addressing the constitutionality of purely adjudicatory

tribunals like the MSPB. See Amicus Br. for Cathy

Harris in Supp. of Neither Party, Trump v. Slaughter,

25-332 (U.S. Oct. 17, 2025).

In Slaughter, the United States repeatedly

acknowledged that purely adjudicatory tribunals present a distinct constitutional question from policymaking independent agencies like the FTC. For example, in its brief, the United States stated that Congress may limit the President’s removal power with

respect to at least some Article I courts. See Br. for

the Pet’rs 23, Trump v. Slaughter, 25-332 (U.S., Oct.

10, 2025) (“U.S. Slaughter Br.”). At oral argument,

the Solicitor General further stated that “the determination” regarding the constitutionality of Article I

courts “would have to be made on a court-by-court basis.” Oral Arg. Tr. 20, Trump v. Slaughter, 25-332

13

(U.S., Dec. 8, 2025). According to the Solicitor General, “when it comes to non-Article III courts,” there

are “hard questions.” Id. at 27-28.

Members of this Court likewise indicated that forcause removal protections for adjudicatory bodies pose

a distinct constitutional question from whether FTC

commissioners must be removable at will. See, e.g.,

id. at 16 (Roberts, C.J.) (noting that it “strikes me that

Humphrey’s may be the issue,” that “it doesn’t mean

that Wiener falls with it,” and that would preserve

“the Court of Appeals of the Armed Forces or the Tax

Court or all those others”); id. at 25-26 (Alito, J.) (noting that the Court will likely face questions “about a

number of different agencies” “in the near future because of actions that the President has taken,” and

asking how the Court could rule in Slaughter “without

reaching some of the agencies that have been mentioned, like the Tax Court and the Claims Court”); id.

at 49 (Kavanaugh, J.) (noting that “non-Article III

courts” are “different”); id. at 90 (Alito, J.) (“[T]he Solicitor General was pressed quite legitimately about

things like the Tax Court and the Claims Court, et

cetera, et cetera.”).

At oral argument, the Chief Justice also asked the

Solicitor General whether it would be possible to

“sever out” any impermissible executive functions

from “an agency” which is predominantly judicial. Id.

at 21. In response, the Solicitor General stated that

such a remedy could be possible in at least some cases.

Id.

E. D.C. Circuit Merits Decision

1. The D.C. Circuit issued its decision in this case

on December 5, 2025, three days before this Court

heard oral argument in Slaughter. Judge Katsas

14

wrote the opinion for the court, which Judge Walker

joined. Pet. App. 1a.-40a. Judge Pan dissented. Pet.

App. 41a-90a.

The majority framed the test for whether Congress

may insulate principal officers from removal as

whether those officers “wield substantial executive

power.” Pet. App. 9a. According to the majority, so

long as an agency possesses “powers” which “exceed

ones that Humphrey’s Executor deemed” permissible

for the FTC in 1935, its members exercise substantial

executive power and must be removable at will. Pet.

App. 21a-22a. At the same time, the majority

acknowledged that Congress may enact for-cause removal protections for “purely adjudicatory bodies.”

Pet. App. 28a.

The majority started with the NLRB, concluded

that the NLRB engages in policymaking, and held its

members therefore exercise substantial executive authority. According to the majority, the NLRB “possesses ‘broad rulemaking authority.’ ” Pet. App. 26a

(quoting Am. Hosp. Ass’n v. NLRB, 499 U.S. 606, 613

(1991)). Moreover, to the extent the NLRB performs

adjudications, it does not apply law to fact like a judicial tribunal. Instead, the NLRB “is tasked with ‘developing and applying national labor policy,’ ” and

“routinely” uses adjudication to create “a bevy of requirements that are akin to ‘statutory’ rules or ‘ones

established by regulation.’ ” Pet. App. 28a-29a (brackets omitted) (quoting NLRB v. Curtin Matheson Sci.,

Inc., 494 U.S. 775, 786 (1990) and Republic Aviation

Corp. v. NLRB, 324 U.S. 793, 804-805 (1945)). “The

NLRB routinely invokes ‘policy’ considerations not

only to create rules by adjudication, but also to overrule them.” Pet. App. 29a (citation omitted).

15

The majority next turned to the Merit Systems

Protection Board. Over the course of its decision, the

majority acknowledged that the MSPB does not perform the same kind of policymaking functions that the

NLRB does. But the majority nevertheless held that

MSPB members are also removable at will.

The majority started by (incorrectly) concluding

that the MSPB possesses substantive rulemaking authority. The government never made this argument.

As support, the majority cited a single decision from

the Federal Circuit, Tunik v. MSPB, 407 F.3d 1326

(Fed. Cir. 2005), which appears nowhere in the government’s briefing. The majority acknowledged that

MSPB’s “rulemaking authority” (to be clear: it really

has none) “does not rival the broad rulemaking authority of the NLRB.” Pet. App. 33a. But the majority

nevertheless concluded that “the existence of at least

some substantive rulemaking power”—again, an argument the government never advanced—required

invalidating the MSPB’s structure. Pet. App. 33a.

With respect to adjudication, the majority likewise

acknowledged that the MSPB—in sharp contrast to

the NLRB—does not engage “in naked appeals to

shifting policy preferences.” Pet. App. 33a. But the

majority concluded that the MSPB’s adjudicatory

powers nevertheless cross the line and require its

members to be removable at will. To reach that conclusion, the majority pointed to a mélange of factors,

such as the fact that the MSPB issues final decisions

and may order relief including backpay and reinstatement. Pet. App. 34a-36a.

2. As to remedy, the majority recognized that the

supposed “constitutional problem” the court faced

“arises from two features” of the MSPB and NLRB: (1)

the majority’s conclusion that each “agency has been

16

vested with significant executive power”; and (2) the

fact that “Congress has restricted the President’s ability to remove its members.” Pet. App. 38a.

The majority recognized that it could “solve” the

supposed “constitutional problem” by invalidating the

“agency powers” it found to cross the line, “rather than

by declining to enforce the removal restrictions.” Pet.

App. 38a. But the majority declined to choose that

more modest remedy for either the MSPB or the

NLRB—which it said would require it “to blue-pencil

provisions from among the full panoply of the executive powers of each agency”—and instead chose to

“disregard the statutory removal restrictions.” Pet.

App. 39a.

3. Judge Pan dissented.

She emphasized that the “the MSPB” “is purely adjudicatory and does not touch upon core constitutional

functions assigned to the President.” Pet. App. 42a.

As she explained, if “the MSPB cannot be independent,” then “no agencies can be independent.” Pet. App.

42a-43a.

As Judge Pan detailed, the “MSPB functions more

like a court than a regulator.” Pet. App. 59a. “[T]he

MSPB’s mission is ‘to adjudicate federal employment

disputes.’ ” Pet. App. 59a. (quoting Harrow, 601 U.S.

at 482). “The MSPB is passive and must wait for appeals and cases to be initiated.” Pet. App. 60a. It does

not engage in investigations. Instead, “the Office of

Special Counsel” “investigates and prosecutes certain

kinds of misconduct.” Pet. App. 60a. “Moreover, the

MSPB does not regulate through rulemaking.” Pet.

App. 60a.

Judge Pan criticized the majority’s “discussion of

the MSPB’s supposedly substantial ‘executive’

17

powers” as “unconvincing.” Pet. App. 61a n.11. “[T]he

features” the majority “highlight[s]” are classic adjudicatory functions. Pet. App. 61a n.11. For example,

“many courts issue final decisions, under many different statutes, and award legal and equitable relief.”

Pet. App. 61a n.11. In short, as Judge Pan explained,

“the MSPB is so clearly adjudicatory and free of quintessential executive responsibilities that if it exercises” an impermissible degree of authority “then

every agency does.” Pet. App. 61a.

This petition follows.

REASONS FOR GRANTING THE PETITION

The decision below invalidated a law of Congress

that has been on the books for nearly half a century

and that has created the architecture of employment

disputes with the federal government for millions of

civil servants. Whatever the Court decides in Slaughter with respect to policymaking bodies, this case is

fundamentally different. The Merit Systems Protection Board is a purely “adjudicatory body.” Wiener,

357 U.S. at 356. As the United States effectively

acknowledged in Slaughter, there is a “historical precedent” dating to the Founding, Free Enter. Fund v.

PCAOB, 561 U.S. 477, 505 (2010) (citation omitted), of

Congress establishing non-Article III “legislative

Courts” like the MSPB. Am. Ins. Co. v. 356 Bales of

Cotton, 26 U.S. 511, 546 (1828) (“Canter”). Under this

“time-honored reading of the Constitution,” these “legislative tribunals,” Freytag v. Comm’r of Internal Revenue, 501 U.S. 868, 889 (1991), may hear matters arising in the territories, id. at 889-890, offenses committed by servicemembers, Ortiz v. United States, 585

U.S. 427, 437 (2018), and disputes regarding “public

rights,” SEC v. Jarkesy, 603 U.S. 109, 130 (2024); see

N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458

18

U.S. 50, 64-70 (1982). Members of these “legislative

courts” may be protected from removal at will, and

may “hold [office] for such term as Congress prescribes.” Ex parte Bakelite, 279 U.S. at 449.

The D.C. Circuit blew past that rich constitutional

tradition—which stands separate and apart from

Humphrey’s Executor—and issued a decision that

threatens the independence of all Article I courts.

Throughout these proceedings, the government’s

strategy has been to conflate the MSPB, which does

not make policy, with FTC and NLRB, which do. This

is not a proper way to make constitutional law, and

this matter cries out for this Court’s review. The

Court should hear this case, which is a natural follow

on to Slaughter. At minimum, the Court should hold

this petition, vacate the judgment, and remand in

light of Slaughter, so that the D.C. Circuit can reconsider its analysis with the benefit of this Court’s decision in that matter.

I. THE MERIT SYSTEMS PROTECTION BOARD’S

REMOVAL PROVISIONS ARE CONSTITUTIONAL.

A. Purely Adjudicatory Bodies Sound In A

Unique Constitutional Tradition.

History, structure, and precedent, separate and

apart from Humphrey’s Executor, confirm that Congress may enact for-cause removal provisions for

purely adjudicatory bodies.

1. Start with history. In the first years of the new

nation, Congress passed laws under which non-Article

III territorial judges were removable by the President

but also held their commissions during good

19

behavior.2 In a landmark decision, Chief Justice Marshall explained that these tribunals were “legislative

Courts,” not Article III courts. Canter, 26 U.S. at 546.

Prior to the Civil War, Congress created the Court of

Claims, a “legislative [c]ourt” whose judges were likewise protected from arbitrary removal. Humphrey’s

Executor, 295 U.S. at 629. 3 Congress afforded removal protection to the Board of General Appraisers

in 1890, and to the United States Court for China in

1906.4

In 1924, Congress established the Board of Tax Appeals—a precursor to the modern Tax Court—the

members of which could “be removed by the President

for inefficiency, neglect of duty, or malfeasance in office, but for no other reason.” Revenue Act of 1924,

Pub. L. No. 68-176, § 900(b), 43 Stat. 253, 337. Two

years later, in 1926, Congress reconstituted the Board

of General Appraisers as the United States Customs

Court, providing the new court’s officers the same

“tenure of office” as the old Board. Act of May 28,

1926, Pub. L. No. 69-304, § 2, 44 Stat. 669, 669.

2. Long before Humphrey’s Executor upheld removal restrictions for the FTC, this Court recognized

that Congress may enact removal restrictions for “an

adjudicatory body.” Wiener, 357 U.S. at 356. That

precedent was a predicate to, and is analytically distinct from, Humphrey’s Executor.

An Act to provide for the Government of the Territory

North-West of the river Ohio, ch. 8, 1 Stat. 50, 51, 53 (1789); Act

of Apr. 7, 1798, ch. 28, § 3, 1 Stat. 549, 550.

2 See

3 See Act of Feb. 24, 1855, ch. 122, § 1, 10 Stat. 612, 612.

4 See Act of June 30, 1906, Pub. L. No. 59-403, § 7, 34 Stat. 814,

816; Act of June 10, 1890, ch. 407, § 12, 26 Stat. 131, 136.

20

In its 1891 decision in McAllister v. United States,

141 U.S. 174 (1891), for example, this Court explained

that Congress, “in the respective acts providing for the

organization of” legislative “courts,” may provide that

its members will “hold their offices during good behavior” or for some other period. Id. at 186. In Ex parte

Bakelite, the Court unanimously confirmed that “legislative courts” “are prescribed by Congress independently of section 2 of article 3; and their judges

hold for such term as Congress prescribes, whether it

be a fixed period of years or during good behavior.”

279 U.S. at 449 (emphasis added). In Myers—the historical high-water mark for the President’s removal

power—Chief Justice Taft’s opinion for the Court

acknowledged precedent regarding legislative courts,

and noted that at minimum, territorial judges are constitutionally distinct from other executive branch officials whom the Constitution required to be removable

at will. 272 U.S. at 156-158; see id. 182 n.2 (McReynolds, J., dissenting) (noting that the majority opinion’s

holding that principal officers must be removed at will

carved out an exception for “nonconstitutional judicial

officers”).

Indeed, two years before Humphrey’s Executor,

this Court heard Williams v. United States, 289 U.S.

553 (1933), in which a judge on the Court of Claims

sued after his salary had been reduced. Id. at 560.

This Court upheld the reduction in the judge’s salary

because the Court of Claims was a legislative court,

not an Article III court whose judges’ salaries cannot

be constitutionally “diminished during their Continuance in Office.” U.S. Const. art. III, § 1. The Court

explained that Congress has broad discretion to “confer upon an executive officer or administrative board,

or an existing or specially constituted court, or retain

21

for itself, the power to hear and determine controversies respecting claims against the United States.”

Williams, 289 U.S. at 580. When Congress chooses to

establish a legislative court to hear such claims, as

Congress did when it established the Court of Claims,

Congress may determine “the tenure of” “offices” for

its members. Id. at 562.5

Two years later, the Court decided Humphrey’s Executor. In that decision, the Court cited Williams,

analogized the FTC to the Court of Claims, and

viewed the FTC’s for-cause removal provision as

bound up with the independence of non-Article III tribunals. Humphrey’s Executor, 295 U.S. at 629. Much

as in this case, the Solicitor General in Humphrey’s

Executor had advanced a maximalist view of the President’s removal authority, which would apply not only

to the FTC but also to “the Court of Claims.” Id. This

Court rejected that notion, concluding instead that

“the judges of the legislative Court of Claims” need not

“continue in office only at the pleasure of the President.” Id. For better or worse, the Court then upheld

the FTC too—not distinguishing the FTC’s functions

from those of “legislative [c]ourt[s].” Id. at 628-629.

Fast forward two decades to Wiener, in which the

Court again rejected an unlimited conception of the

President’s removal authority. Wiener involved the

President’s efforts to remove a member of the War

5 In 1953, Congress declared the Court of Claims an Article III

court. See An Act to amend title 28, United States Code, Pub. L.

No. 83-158, 67 Stat. 226, 226 (1953); Glidden Co. v. Zdanok, 370

U.S. 530, 531-532 (1962). In 1982, Congress reversed course and

designated the newly constituted Claims Court an Article I court.

See Federal Courts Improvement Act of 1982, Pub. L. No. 97-164,

§ 105, 96 Stat. 25, 27.

22

Claims Commission. In ruling for the removed official, the Court stressed that the Commission was a

truly “adjudicatory body” that decided “claims for

compensating internees, prisoners of war, and religious organizations” “who suffered personal injury or

property damage at the hands of the enemy in connection with World War II.” Wiener, 357 U.S. at 350, 356.

Its decisions were final and were “not subject to review” “by any court.” Id. at 354-355 (citation omitted).

In the Court’s words, the Commission decided cases

with “all the paraphernalia by which legal claims are

put to the test of proof.” Id. at 354. “Congress could”

“have given jurisdiction over the[ ] claims to the District Courts or to the Court of Claims.” Id. at 355. But

instead, Congress “chose to establish a Commission to

‘adjudicate according to law’ the classes of claims defined in the statute,” and that choice “did not alter the

intrinsic judicial character of” its “task.” Id.

Two points about Wiener bear emphasis. First, the

Court could not have more clearly rejected the notion

that the President may remove the members of an adjudicatory body: “[T]he Constitution” does not provide

the President the ability to “remove a member of an

adjudicatory body like the War Claims Commission

merely because he wanted his own appointees.” Id. at

356. For all the reasons described below, the MSPB

is an adjudicatory body, and Wiener’s emphatic holding directly applies to this case. See infra pp. 24-29.

Second, in its analysis, Wiener quoted Humphrey’s Executor and referenced its “philosophy.” Id. But the

history and precedent of adjudicatory tribunals

demonstrates that Wiener reflects a unique tradition

that stands all on its own.

3. There are strong structural reasons Congress

may provide a measure of independence for

23

adjudicatory bodies, even if the Court concludes in

Slaughter that Congress cannot do so for policymaking agencies.

For starters, adjudicatory bodies do not pose the

same purported “accountability” concerns as policymaking bodies. In Slaughter, the government argued

that presidential removal for members of the FTC is

necessary to protect against a “headless Fourth

Branch” that governs important aspects of American

life yet remains immune from democratic “accountability.” U.S. Slaughter Br. 4, 5, 20 (quoting FCC v.

Consumers’ Rsch., 606 U.S. 656, 708 (2025) (Kavanaugh, J., concurring)). But by their nature, purely

adjudicatory bodies do not promulgate new rules,

make substantive policy, or exercise “vast power” over

our lives. Id. at 20. Rather, like this branch of government, Article I courts apply the law that Congress

enacts to discrete cases before them. Cf. Alexander M.

Bickel, The Least Dangerous Branch: The Supreme

Court at the Bar of Politics (1962). At times, this

Court has even said that the “power exercised by some

non-Article III tribunals is judicial power.” Freytag,

501 U.S. at 889 (citing Williams, 289 U.S. at 565-566);

see Ortiz, 585 U.S. at 457, 463 (Thomas, J., concurring) (concluding that military tribunals within the

executive branch exercise “judicial power”). There is

thus no more of a democratic “accountability” gap for

adjudicatory entities like the MSPB and Tax Court

than there is for this Court.

Allowing Congress to provide removal protections

for purely adjudicatory entities, moreover, furthers

critical due process values. A “fair tribunal is a basic

requirement of due process,” and that rule “applies to

administrative agencies which adjudicate as well as to

courts.” Withrow v. Larkin, 421 U.S. 35, 46 (1975)

24

(quotation marks and citation omitted). In certain circumstances, Congress may reasonably determine that

an adjudicator “who holds his office only during the

pleasure of another, cannot be depended upon to

maintain an attitude of independence against the latter’s will.” Wiener, 357 U.S. at 353 (citation omitted).

This does not mean that the Constitution’s guarantee

of due process requires that all agency adjudicators be

independent from at-will removal. But Congress may

determine that in certain circumstances—for example, in disputes regarding partisan retaliation by the

executive branch against its own employees—a measure of independence is necessary to ensure both the

reality and appearance of impartiality.

B. The Merit Systems Protection Board Is

Purely Adjudicatory.

1. The MSPB fits comfortably within the long tradition of non-Article III tribunals that, as Wiener emphatically held, Congress may reasonably protect

from undue interference.

The MSPB is “purely adjudicatory.” Pet. App. 42a

(Pan, J., dissenting). “The Board does not regulate the

conduct of private parties, nor does it possess its own

rulemaking authority except in furtherance of its judicial functions.” Pet. App. 107a. “It cannot initiate

its own personnel cases, but must instead passively

wait for them to be brought.” Pet. App. 107a (quotation marks and citation omitted). Even the government agrees “the MSPB is ‘predominantly an adjudicatory body.’ ” Pet. App. 211a (Millett, J., dissenting)

(quoting Pet. App. 285a). In fact, “the MSPB is so

clearly adjudicatory and free of quintessential executive responsibilities that if it exercises” an impermissible degree of executive authority, no Article I court

is safe. Pet. App. 61a (Pan, J., dissenting).

25

The comparison between MSPB and the NLRB

drives the point home. As the D.C. Circuit majority

acknowledged, the MSPB does not decide cases based

on “naked appeals to shifting policy preference[ ].”

Pet. App. 33a. In contrast, the NLRB “routinely invokes ‘policy’ considerations not only to create rules by

adjudication, but also to overrule them.” Pet. App.

29a (citation omitted). That is why this Court has repeatedly referred to the NLRB as engaged with the

“spacious domain of policy,” Pet. App. 29a (quoting

Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194

(1941)), but recently described the MSPB’s “mission”

as “to adjudicate federal employment disputes.” Pet.

App. 59a (Pan, J., dissenting) (emphasis added) (quoting Harrow, 601 U.S. at 482).

2. None of the D.C. Circuit’s flawed reasons for invalidating the MSPB hold merit. Make no mistake: If

this decision is allowed to stand, it will call into question the independence of every non-Article III tribunal, such as the Tax Court and the Court of Appeals

for Veterans Claims.

Consider what might be the D.C. Circuit’s most

egregious holding, the notion that the Board makes

policy via substantive rules. The government never

made that argument below. Because it is wrong. The

majority relied on a single case, Tunik v. MSPB, 407

F.3d 1326 (Fed. Cir. 2005), which if anything demonstrates that the Board is not a policymaking entity.

Prior to Tunik, the MSPB had issued a decision in a

case called Doyle regarding ALJ removals. Id. at

1333. As courts often do, the Board promptly “reorganize[d] and update[d]” “its rules of practice and procedure” to reflect Doyle, “for the benefit of the Board’s

customers.” Practices and Procedures, 63 Fed. Reg.

42,685, 42,685 (Aug. 11, 1998). In other words, the

26

Board changed its local rules to reflect new precedent—just like a federal court might enact local rules

after a significant decision requiring a change in procedure. This kind of procedural rule is not the stuff of

a policymaking entity. It is the hallmark of an adjudicatory body.

The MSPB subsequently concluded it had erred in

Doyle, relying on the tools of statutory interpretation

and intervening precedent. Tunik v. Soc. Sec. Admin.,

93 M.S.P.R. 482 (2003). This kind of reversal happens

rarely at the MSPB, and more rarely still on partisan

lines—itself a sign that the MSPB is not a policymaking entity like the NLRB. But in Tunik, the Federal

Circuit incorrectly concluded that the MSPB was nevertheless bound by its old court rules until such time

as the Board repealed the rules via notice and comment—despite the Administrative Procedure Act exempting “rules of agency organization, procedure, or

practice” from that process. 5 U.S.C. § 553(b)(A).

That the D.C. Circuit majority cited only this one outlier case—which involves internal rules and procedures that should have been exempt from the Administrative Procedure Act—proves the point: The MSPB

does not engage in substantive rulemaking. The D.C.

Circuit should not have relied on a needle in a haystack, which the government did not brief, to cripple

the tribunal.

We could go on. The majority also theorized that

the MSPB can withhold the salaries of executive

branch officials to enforce compliance with its orders.

Pet. App. 36a-37a. The Board cannot. The MSPB

originally had that statutory authority in the 1980s.

But the statute required the involvement of the Comptroller General, and it has been considered unconstitutional since this Court’s decision in Bowsher, which

27

held in 1986 that the Comptroller General is a legislative branch official. See supra p. 8 n.1. To the extent

the MSPB could wield this power today, even after

Bowsher, it would simply mirror a court’s power of

contempt—and if it were a problem, it is entirely severable. 6

The majority noted that, in rare circumstances, the

statutory scheme designates the MSPB as the respondent in litigation, and the MSPB’s attorneys appear in court. Pet. App. 37a-38a. This statutory device permits the Board’s expert attorneys to provide

specialized knowledge to courts in complex procedural

appeals. It bears no relationship to litigation brought

by executive branch agencies like the Department of

Justice, is akin to a district court responding to a mandamus petition, and is easily severable to boot. See,

e.g., Fed. R. App. P. 21(b)(4) (permitting trial judges

to respond to mandamus petitions).

The panel concluded that the Board’s (highly deferential) review of the reasonableness of an agency’s

penalty imposed on an employee under Douglas v.

Veterans Admin., 5 M.S.P.R. 280 (1981), is policymaking. Pet. App. 35a. Not so. In Douglas itself, the

Board stressed it is not “free simply to substitute its

judgment for that of the employing agencies.” Id. at

300. Like an Article III court reviewing a criminal

6 The majority sought to distinguish Bowsher on the theory that

the statute “does not give the Comptroller General any discretion” to withhold salaries. Pet. App. 37a (citing 5 U.S.C.

§ 1204(e)(2)(A))). But nothing prevented the Comptroller General from ignoring the Board’s order. And if “the power to withhold the salary of a government official is” truly impermissibly

“executive,” as the majority concluded, then the involvement of a

legislative branch official in that process is presumably not constitutional under the D.C. Circuit’s rubric. Pet. App. 37a.

28

sentence, the MSPB narrowly analyzes whether “the

agency’s penalty is within the range allowed by law,”

whether it “was based on a consideration of the relevant factors,” and whether “there has not been a clear

error of judgment.” Id. at 301 (brackets, quotation

marks, and citation omitted).

But here’s the real kicker: The majority faulted the

MSPB for hearing cases involving multiple statutes,

Pet. App. 34a-35a; for issuing relief such as backpay

and damages, Pet. App. 35a-36a; and for issuing “final” “decisions” that are reviewable in Article III

courts, Pet. App. 34a. This gives the game away.

These are all quintessential adjudicatory functions. If

these extremely modest functions nudge the MSPB

over the line, then the Tax Court and every other legislative court is at risk. It bears emphasis: The majority’s analysis is impossible to square with Wiener.

As Judge Pan underscored in dissent, Wiener “upheld

for-cause removal protections for the leaders of the

War Claims Commission, which enjoyed ‘finality of

determination’ over a ‘large number of claimants with

a diversity in the specific circumstances giving rise to

their claims,’ and which could order ‘compensation for

internees, prisoners of war, and religious organizations.’ ” Pet. App. 61a n.11 (brackets omitted) (quoting

Wiener, 357 U.S. at 350, 354-355). If the MSPB is not

constitutional, then neither was the War Claims Commission in 1958 and neither is the Tax Court today.

29

The majority offered no response. That silence is

telling. The decision below jeopardizes all non-Article

III adjudicatory bodies.7

C. If The Merit Systems Protection Board

Has Some Impermissible Authority, It

Is Severable.

The majority erred in a second, critical respect: If

there was some vestigial authority that tipped the balance—say, a mote of never-exercised regulatory authority—the proper remedy was not to blow up the

MSPB’s structure, but instead to invalidate that

dormant power and keep this quintessential judicial

body intact.

This Court adopted that remedy in United States

v. Arthrex, Inc., 594 U.S. 1 (2021). There, a party had

challenged removal protections for administrative patent judges. The Court utilized “a tailored approach”

that preserved the removal statute but invalidated

other portions of the statutory scheme. Id. at 25. The

same remedy would be appropriate here. In “the government’s own words, the MSPB is ‘predominantly an

adjudicatory body.’ ” Pet. App. 211a (Millett, J., dissenting) (quoting Pet. App. 285a). To the extent some

minuscule facet of the MSPB’s design makes the

Board insufficiently judicial, the response is to invalidate that limited power—not invalidate a tribunal

central to the entire civil service system. Notably, the

Chief Justice suggested the possibility of this remedy

7 As the district court explained, the MSPB additionally stands

on unique constitutional footing because Congress has authority

to establish the Board incident to its constitutional power to

“limit, restrict, and regulate the removal” of inferior officers and

employees. Pet. App. 109a (quoting Perkins, 116 U.S. at 485).

The D.C. Circuit notably failed to address this point too.

30

at oral argument in Slaughter, and the Solicitor General agreed it could be appropriate in some cases. See

supra p. 13.

That “tailored” remedy best comports with the

principles of judicial modesty because it effectuates

Congress’s intent in creating an independent adjudicatory body to hear civil service cases. Arthrex, 594

U.S. at 25. There is simply no reason to believe that

Congress would have wanted to neuter the MSPB’s independence, which was a cornerstone of modern civil

service reform. Indeed, in 1978, Congress expressly

stated that it would have been “unlikely” that it

“would have granted” OPM “the power it has” without

the MSPB’s “mandate for independence.” Senate Report at 7. In contrast, it would be a massive judicial

power grab to hand the MSPB’s functions to the President—the very thing Congress sought to avoid—

based on hairsplitting technicalities.

Tellingly, the D.C. Circuit majority never mentioned Arthrex, nor engaged in any meaningful analysis on remedy. In a brief paragraph, the majority

stated that courts “typically” “disregard[ ] the removal

restriction”—admitting that courts can and do choose

other remedies. Pet. App. 39a (emphasis added).

The majority then asserted that it would not “bluepencil provisions from among the full panoply of the

executive powers of each agency.” Pet. App. 39a (emphasis added).

That is a strawman. The MSPB does not exercise

a “full panoply of” “executive powers,” requiring the

court to “blue-pencil” an entire statutory scheme.

Whatever might be said of the FTC or the NLRB,

when it comes to the MSPB, the D.C. Circuit was not

being asked to revise a massive agency structure with

vast executive functions. Instead, the D.C. Circuit

31

majority invalidated the MSPB’s removal provisions

based in no small part on a handful of inconsequential

provisions—such as nonexistent rulemaking authority that the MSPB does not exercise—none of which

are central to the function of the tribunal. To the extent a vestigial provision tipped the balance, the solution was to excise it, not to blow up a central feature

of the agency’s structure.

II. THIS CASE WARRANTS THIS COURT’S REVIEW.

This Court should not leave the D.C. Circuit’s

flawed decision as the final word in this matter. Declaring “an Act of Congress unconstitutional” “is the

gravest and most delicate duty” this branch may perform, Blodgett v. Holden, 275 U.S. 142, 147-148 (1927)

(Holmes, J., concurring), and the Court will often hear

matters in which “lower courts hold federal statutes

unconstitutional” even absent a circuit-split, County

of Maricopa v. Lopez-Valenzuela, 575 U.S. 1044, 1045

(2015) (mem.) (Thomas, J., dissenting from denial of

certiorari). But this case is especially important. The

D.C. Circuit’s decision directly contradicts Wiener and

calls into question the constitutionality of non-Article

III courts from the Tax Court on down. If the judiciary

is to take that extraordinary step and invalidate the

structure of institutions with roots tracing to the

Founding (to be clear: it should not), that decision

should come—if at all—from this Court. See S. Ct. R.

10(c).

This case is not Slaughter redux. Even if the Court

in Slaughter invalidates for-cause removal statutes

for policymaking agencies and overturns Humphrey’s

Executor, this case presents the important question

which Slaughter does not: whether Congress may

limit the President’s ability to interfere with and remove non-Article III adjudicators. That question

32

deserves to be analyzed on its own merits, and the

Court should not reward the government’s tactic of obfuscating that important and distinct issue. Throughout these proceedings, the government has muddled

the distinctions between MSPB and policymaking

bodies like the FTC and the NLRB. And in Slaughter,

the government invited the Court to overturn Wiener

in a drive-by holding. See U.S. Slaughter Br. 30 n.1.

At the stay stage, the Court recognized then that this

matter deserved the benefit of “full briefing and argument.” Wilcox, 145 S. Ct. at 1415. The time has come.

The Court should hear the case and definitively decide

this matter, as only it can.

Recent events, moreover, have made the independence of the MSPB particularly salient, perhaps more

so than any other Article I court. Over the last year,

the executive branch terminated hundreds of civil

servants in ways that appeared to facially violate civil

service laws. Then, in September 2025, the Office of

Legal Counsel issued a decision directing the MSPB

how to rule in cases challenging those terminations.

See The Merit Systems Protection Board’s Authority to

Adjudicate Constitutional Questions within an Administrative Proceeding, 49 Op. O.L.C. (Sep. 26, 2025)

(slip op.). This is astonishing. Congress created the

MSPB as a tribunal to rule—without fear or favor—in

disputes involving the civil service. The MSPB cannot

be expected to fulfill that judicial function, and engender public confidence in its decision-making, when one

party can order the Board how to decide a case and

threatens to remove members if they do not comply.

This Court is already facing serious legal questions

about the implications of the MSPB’s loss of independence. See Margolin v. Nat’l Ass’n of Immigr. Judges,

No. 25A662, 2025 WL 3684278 (U.S. Dec. 19, 2025)

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(mem.). Removed civil servants who lack confidence

in the MSPB’s fairness are seeking to bypass the

MSPB and proceed instead to district court. See, e.g.,

Comey v. DOJ, No. 1:25-cv-7625 (S.D.N.Y) (Maureen

Comey’s constitutional challenge to an allegedly unlawful termination from career position as an Assistant United States Attorney). The Court should put

an end to the uncertainty, hear this case, preserve the

structure of the Civil Service Reform Act, and restore

confidence in the MSPB.

At minimum, the Court should hold this petition

pending Slaughter, and grant, vacate, and remand

this case in light of its decision. To the extent Slaughter clarifies any aspect of the legal framework surrounding removal, this approach will allow the D.C.

Circuit—including the en banc court—to reanalyze

the issues in this case with the benefit of the Court’s

decision.

34

CONCLUSION

The Court should grant the petition. In the alternative, the Court should hold the petition pending

Slaughter, and then grant it, vacate the judgment,

and remand to the D.C. Circuit.

Respectfully submitted,

NATHANIEL A.G. ZELINSKY NEAL KUMAR KATYAL

Counsel of Record

SAMANTHA BATEMAN

MILBANK LLP

JAMES I. PEARCE

1101 New York Ave., NW

WASHINGTON LITIGATION

Washington, D.C. 20005

GROUP

1717 K St. NW, Suite 1120 (202) 835-7500

nkatyal@milbank.com

Washington, DC 20015

LINDA MARIE CORREIA

CORREIA & PUTH, PLLC

1400 16th Street, NW

Suite 450

Washington, DC 20036

KERRIE DIANE RIGGS

JEREMY D. WRIGHT

KATOR, PARKS, WEISER &

WRIGHT, PLLC

1150 Connecticut Ave., NW

Suite 705

Washington, DC 20036

Counsel for Petitioner

March 2026