Amicus Curiae Brief — Cathy A. Harris, Petitioner v. Scott Bessent, Secretary of the Treasury, et al.

Supreme Court briefApr 22, 2026

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No. 25-1110

IN THE

Supreme Court of the United States

CATHY A. HARRIS,

Petitioner,

SCOTT BESSENT, SECRETARY OF TREASURY, ET AL.,

Respondents.

_______________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

_______________________

BRIEF OF AMICI CURIAE FORMER BOARD

MEMBERS AND GENERAL COUNSEL OF THE

MERIT SYSTEMS PROTECTION BOARD IN

SUPPORT OF PETITIONER

_______________________

KATHRYN ALI

Counsel of Record

ELIZABETH C. LOCKWOOD

COLE LAUTERMILCH

ALI & LOCKWOOD LLP

501 H Street NE, Ste. 200

Washington, DC 20002

(202) 651-2475

katie.ali@alilockwood.com

Counsel for Amici Curiae James M. Eisenmann,

Raymond Limon, & Jessica Parks

TABLE OF CONTENTS

INTERESTS OF AMICI CURIAE .............................. 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ............................................................... 4

The MSPB is the Capstone of This

Country’s Development of a Meritbased Civil Service. ....................................... 4

II.

The MSPB is an Adjudicatory Body

with

Narrow

Jurisdiction

and

Authority........................................................ 7

III.

As Designed by the Civil Service

Reform Act, the MSPB is Functionally

the Court of First Review for FederalEmployment Issues. .................................... 16

CONCLUSION .......................................................... 19

(i)

Cases

TABLE OF AUTHORITIES

Brenner v. Dep’t of Veterans Affs.,

990 F.3d 1313 (Fed. Cir. 2021) .............................. 12

Brown v. Dep’t of the Air Force,

2022 WL 1572406 (M.S.P.B. May 18, 2022)............ 8

Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971) ................................................ 11

Dep’t of Health & Hum. Servs. v. Jarboe, 2023

M.S.P.B. 22 (2023).................................................. 13

Douglas v. Veterans Administration,

5 M.S.P.B. 313 (1981)............................................. 11

Elder v. Dep’t of the Air Force,

124 M.S.P.R. 12 (2016)............................................. 8

Elgin v. Dep’t of Treasury,

567 U.S. 1 (2012) .................................................... 17

Harris v. Bessent,

775 F.Supp.3d 164 (D.D.C. 2025) .................... 16, 17

Hollander v. Off. of Pers. Mgmt.,

39 M.S.P.R. 195 (1988)........................................... 10

Lachance v. Devall,

178 F.3d 1246 (Fed. Cir. 1999) .............. 6, 10, 11, 18

Rodriguez v. Dep’t of Veterans Affs.,

8 F.4th 1290 (Fed. Cir. 2021) ................................. 11

Sayers v. Dep’t of Veterans Affs.,

954 F.3d 1370 (Fed. Cir. 2020) ........................ 11, 17

Special Counsel v. Dep’t of Transp.,

74 M.S.P.R. 155 (1997)........................................... 14

iii

Starkey v. Dep’t of Hous. & Urb. Dev.,

2024 M.S.P.B. 6 (2024)............................................. 7

United States v. Fausto,

484 U.S. 439 (1988) ............................................ 5, 17

Warren v. Dep’t of Army,

804 F.2d 654 (Fed. Cir. 1986) ................................ 10

Whitmore v. Dep’t of Labor,

680 F.3d 1353 (Fed. Cir. 2012) ................................ 7

Statutes

5 U.S.C. § 1201 ............................................................ 7

5 U.S.C. § 1202 .......................................................... 17

5 U.S.C. § 1204 .............................................. 12, 15, 16

5 U.S.C. § 1212 ............................................................ 6

5 U.S.C. § 1214 .................................................... 13, 14

5 U.S.C. § 1215 .......................................................... 16

5 U.S.C. § 1216 ............................................................ 6

5 U.S.C. § 1305 .......................................................... 15

5 U.S.C. § 7521 .............................................. 12, 13, 15

5 U.S.C. § 7701 .......................................................... 17

5 U.S.C. § 7703 ............................................................ 9

10 U.S.C. § 944 .......................................................... 15

26 U.S.C. § 7453 ........................................................ 15

28 U.S.C. § 2071 ........................................................ 15

28 U.S.C. § 2503 ........................................................ 15

38 U.S.C. § 714 .......................................................... 11

38 U.S.C. § 7264 ........................................................ 15

Lloyd-La Follette Act of 1912,

Pub. L. No. 62-336, 37 Stat. 539 .............................. 5

Pendleton Act,

47 Cong. Ch. 27, 22 Stat. 403 (1883) ....................... 4

Whistleblower Protection Act of 1989,

Pub. L. 101–12, 103 Stat. 16.............................. 7, 10

Rules

Fed. R. App. P. 47 ...................................................... 15

Fed. R. Civ. P. 83 ....................................................... 15

Regulations

5 C.F.R. § 1201.3 ..................................................... 7, 8

5 C.F.R. § 1201.115 ..................................................... 8

5 C.F.R. § 1201.117 ..................................................... 9

5 C.F.R. § 1201.136 ................................................... 14

5 C.F.R. § 1201.137 ............................................. 13, 15

5 C.F.R. § 1201.138 ................................................... 15

5 C.F.R. § 1201.139 ............................................. 15, 16

5 C.F.R. § 1201.140 ................................................... 15

5 C.F.R. § 1201.141 ................................................... 15

5 C.F.R. § 1201.142 ................................................... 15

5 C.F.R. § 1201.143 ................................................... 13

5 C.F.R. § 1201.144 ................................................... 13

5 C.F.R. § 1201.145 ................................................... 13

5 C.F.R. § 1201.146 ................................................... 13

Legislative Materials

14 Cong. Rec. 206 (1882) ............................................. 4

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

as reprinted in 1978 U.S.C.C.A.N. 2723 . 5, 6, 17, 18

INTERESTS OF AMICI CURIAE1

James M. Eisenmann, Raymond Limon, and

Jessica Parks respectfully submit this brief as amici

curiae in support of Petitioner Cathy Harris. Amici

were appointed under three different Presidents to

serve in various capacities at the Merit Systems

Protection Board (“MSPB” or the “Board”).2 Mr.

Eisenmann was appointed by then-MSPB Chairman

Susan T. Grundmann to be General Counsel of the

MSPB in January 2010.3 He served in that position

until January 2013, when he was appointed Executive

Director of the Board. Mr. Eisenmann remained as

Executive Director until he resigned from the MSPB

in September 2018. Mr. Limon was nominated by

President Joe Biden to serve as a Board Member in

2021 and later served as Vice Chairman and Acting

Chairman before he retired on February 28, 2025, the

last day of his term. Ms. Parks was nominated by

President George H.W. Bush to serve as a Board

Member in 1990 and was named Vice Chair of the

1 No counsel for a party authored this brief in whole or in part,

no party or counsel for a party contributed money that was

intended to fund preparing or submitting this brief, and no

person other than amici or their counsel contributed money that

was intended to fund the preparation or submission of this brief.

Counsel of record for the parties received notice of amici’s intent

to file this brief at least 10 days prior to its due date.

Amici have collective experience working on and appearing

before the MSPB that spans many years. However, amici’s

individual knowledge of internal Board practices and statistics is

limited to the periods in which they held their Board positions.

Any reference to amici’s knowledge or belief is as of that time

period only.

3 Mr. Eisenmann previously represented Petitioner before the

district court below, but he does not represent any party on

appeal.

Board by President Bill Clinton in 1993 before

concluding her term in 1995.4

Amici curiae submit this brief to clarify the

MSPB’s mission and emphasize its predominantly

adjudicatory functions within narrow and limited

jurisdictional bounds. Amici have seen how important

it is to protect the integrity of the civil service, and to

ensure that federal employees can serve the public

good without fear of retaliation. In amici’s experience,

Board Members’ for-cause removal protection is

critical to maintaining the Board’s impartiality and

fostering independent and consistent review of

adverse employment actions without fear of reprisal

in the wake of political transitions.

4 Although Ms. Parks is a member at Kator, Parks, Weiser &

Wright, PLLC, she has had no involvement in the firm’s

representation of Ms. Harris and submits this brief in her

personal capacity.

SUMMARY OF ARGUMENT

Amici provide a brief summary of the history of

the modern-day civil service to give context for the

MSPB’s creation and mission. The MSPB was

designed to protect and promote the country’s meritbased civil service, and furthers that mission by

exercising its narrow jurisdiction to efficiently

adjudicate appeals of certain adverse employment

actions and issue decisions that are reviewable by an

Article III court. These adjudicatory functions are the

Board’s core and predominant activities, as the

District Court correctly concluded.

ARGUMENT

I. The MSPB is the Capstone of This Country’s

Development of a Merit-based Civil Service.

The country’s modern merit-based civil service

is rooted in the 1883 Pendleton Act, which sought to

combat the patronage or “spoils” system, and created

a Civil Service Commission to oversee a competitive

examination system for public servants.5 The Act was

an important milestone in a multigenerational debate

over the patronage system, under which the civil

service was routinely reshuffled by the reigning

political party to reward the President’s supporters

and their friends and families with federal jobs.6 The

Pendleton Act set the stage for career federal

employees to be selected for their “fitness, capacity,

honesty, [and] fidelity,” rather than solely their

“personal fidelity and partisan activity.”7

Over time, Congress has reaffirmed and

expanded protections for civil servants. This includes

the guarantee that certain civil servants could be

5 Pendleton Act, 47 Cong. Ch. 27, 22 Stat. 403 (1883).

6 14 Cong. Rec. 206 (1882) (Statement of Sen. George Pendleton)

(Under the system that existed prior to the Act’s passage, “the

President and his Cabinet and those who are charged with the

responsibility [of selecting government officials had] remitted the

question of fitness to their own partisan friends” in Congress who

then helped secure positions for “those whose friends and

families and connections and aids and deputies will serve their

purpose.”)

7 Id.

removed only for cause,8 the adoption of protections

for whistleblowing civil servants,9 and the

requirement that civil servants receive a written

record of charges against them before dismissal.10

These efforts to bolster the country’s civil service

culminated in the Civil Service Reform Act of 1978

(“CSRA”), which implemented additional measures to

protect career federal employees from undue partisan

political influence and to otherwise adopt “the most

effective possible civil service; that is, one in which

employees are hired and removed on the basis of merit

and one which is accountable to the public through its

elected leaders.”11 To achieve that goal, Congress

“designed” the CSRA “to balance the legitimate

interests of the various categories of federal employees

with

the

needs

sound

and

efficient

administration.”

8 See Lloyd-La Follette Act of 1912, Pub. L. No. 62-336, § 6, 37

Stat. 539, 555 (1912) (“[N]o person in the classified civil service

of the United States shall be removed therefrom except for such

cause as will promote the efficiency of said service and for reasons

given in writing ... .”).

Id. (providing that “the presenting ... of any grievance or

grievances to the Congress or any Member thereof shall not

constitute or be cause for reduction in rank or compensation or

removal of such person or groups of persons from” the civil

service).

10 Id. (requiring that “copies of charges, notice of hearing, answer,

reasons for removal, and of the order of removal ... shall be

furnished to the person affected”).

S. Rep. No. 95-969, at 2 (1978), as reprinted in 1978

U.S.C.C.A.N. 2723, 2724–25 (report of the Senate Committee on

Governmental Affairs to accompany S. 2640).

12 United States v. Fausto, 484 U.S. 439, 445 (1988).

In passing the CSRA, Congress recognized that

the Civil Service Commission’s “performance” and

“credib[ility]” had suffered because of its “conflicting

functions” as both “management agent for a president

elected through a partisan political process” and

neutral adjudicator of federal-employment disputes.13

The Act therefore dissolved the Commission, dividing

its managerial and oversight functions among new

agencies: the Office of Personnel Management

(“OPM”), Office of Special Counsel (“OSC”), and Merit

Systems Protection Board.14 “[M]anagerial functions”

were “explicitly entrusted by statute to OPM—and to

OPM alone.”15 And the Commission’s oversight

functions were split between OSC and the Merit

Systems Protection Board to “discourage subversions

of merit principles”16 and provide additional

protection for “employees who disclose government

illegality, waste, and corruption.”17 The OSC

investigates allegations of prohibited personnel

practices, prosecutes violators of civil service rules

and regulations, and enforces the Hatch Act.18

Although originally an office of the Board, since 1989,

the OSC is an independent Executive Branch agency

S. Rep. No. 95-969, at 5 (1978), as reprinted in 1978

U.S.C.C.A.N. 2723, 2727.

14 Id. at 7; Lachance v. Devall, 178 F.3d 1246, 1254–55 (Fed. Cir.

1999).

15 Lachance, 178 F.3d at 1255.

S. Rep. No. 95-969, at 7 (1978), as reprinted in 1978

U.S.C.C.A.N. 2723, 2729; see also Lachance, 178 F.3d at 1255.

S. Rep. No. 95-969, at 8 (1978), as reprinted in 1978

U.S.C.C.A.N. 2723, 2730.

18 See 5 U.S.C. §§ 1212, 1216.

charged with prosecuting certain cases before the

Board.19

II. The MSPB is an Adjudicatory Body with

Narrow Jurisdiction and Authority.

In the nearly five decades since it was created,

the MSPB’s core mission has remained the same: to

protect the country’s merit- and performance-based,

nonpartisan workforce. By law, the Board must be

bipartisan—with no more than two of the three Board

members from the same political party who serve

staggered

appointments—and

comprised

individuals with a “demonstrated ability, background,

training or experience” to carry out the Board’s

functions. 5 U.S.C. § 1201.

A. The Board’s primary statutory function is to

adjudicate federal employee appeals of adverse

employment actions. See 5 C.F.R. § 1201.3. These

include terminations, suspensions without pay,

adverse actions taken “because of the appellant’s

whistleblowing or other protected activity,” 5 C.F.R.

§ 1201.3(b)(2),20 and terminations of probationary

employees “motivated by partisan political reasons.”

5 C.F.R. § 1201.3(a)(3).21 The substantive rights at

19 See Whistleblower Protection Act of 1989, Pub. L. 101–12, 103

Stat. 16 (1989).

20 See, e.g., Whitmore v. Dep’t of Labor, 680 F.3d 1353 (Fed. Cir.

2012) (seminal case involving the retaliatory termination of a

Department of Labor employee for whistleblowing activity

related to reporting and disclosure failures by the Occupational

Safety and Health Administration).

21 See, e.g., Starkey v. Dep’t of Hous. & Urb. Dev., 2024 M.S.P.B.

(2024)

(denying

agency

petition

seeking

reverse

issue in these appeals derive not from Board rules but

from civil-service statutes and the regulations of

executive branch agencies with managerial authority

over federal employees, like OPM. See 5 C.F.R.

§ 1201.3 (listing the statutory or regulatory bases for

Board appellate-jurisdiction matters).

Appeals are first heard by an Administrative

Judge (“AJ”), who issues an initial decision that

identifies material issues of fact and law, summarizes

the evidence, makes credibility determinations, and

issues conclusions of law. Appellants and agencies

may then appeal the AJ’s decision to the Board via

Petition for Review (“PFR”). The Board grants review

of AJ decisions to correct four types of errors

prescribed in its Practices and Procedures

regulations, 5 C.F.R. § 1201.115: (i) a “material”

factual error of “sufficient weight to warrant an

outcome different from that of the initial decision,”

Elder v. Dep’t of the Air Force, 124 M.S.P.R. 12, ¶ 36

(2016); (ii) the AJ’s decision is based on an “erroneous

interpretation of statute or regulation or the

erroneous application of the law to the facts of the

case,” Brown v. Dep’t of the Air Force, 2022 WL

1572406, *1 (M.S.P.B. May 18, 2022); (iii) the AJ’s

rulings “were not consistent with required procedures

or involved abuse of discretion, and the resulting error

affected the outcome of the case,” id.; or (iv) “new and

material evidence or legal argument is available that,

despite the petitioner’s due diligence, was not

available when the record closed,” id.

Administrative Judge decision finding political-affiliation

discrimination in firing of probationary employee).

In considering a PFR, the Board may hear oral

argument, request additional briefing, remand the

appeal to the AJ for additional proceedings, or affirm,

reverse, modify, or vacate the AJ’s initial decisions. 5

C.F.R. § 1201.117. Employees and applicants

“adversely affected or aggrieved by a final order or

decision of the [MSPB] may obtain judicial review” in

an Article III court, 5 U.S.C. § 7703(a)(1), and the

Director of the Office of Personnel Management can

independently petition for judicial review of Board

decisions that have a “substantial impact on a civil

service law, rule, regulation, or policy directive,” 5

U.S.C. § 7703(d).

The Board’s decision-drafting process is

adjudicatory in nature and designed to reach

consensus based on established MSPB and federal

case law. Unlike other administrative agencies, the

Board’s decisions are drafted by a cadre of career

attorneys in the Office of Appeals Counsel (“OAC”),22

who draft opinions for Board members based on Board

and applicable court precedent. The career attorneys

in the Office of Appeals Counsel are trained to draft

opinions not for a single Board member, but for the

Board as a whole. Further, it is usually not the

practice for individual Board members to instruct

OAC attorneys to draft initial opinions to get to a

certain result. Instead, because the Board’s case law

remains consistent and linear despite changes in the

Board’s composition, OAC attorneys draft opinions

that routinely garner unanimous support—a clear

To be clear, the Office of Appeals Counsel is not

organizationally housed within any particular Board member’s

office but is a separate office headed by a career senior executive.

indication that the Board’s decisions are not swayed

by partisan affiliations. This entire appeals process is

therefore designed to provide orderly, consistent, and

neutral consideration of federal employment appeals

before the MSPB and within the Court of Appeals for

the Federal Circuit—further underscoring the

adjudicatory nature of the Board’s work.

B. When assessing an agency’s action, the

MSPB must give the presiding agency considerable

deference. Warren v. Dep’t of Army, 804 F.2d 654, 656

(Fed. Cir. 1986) (MSPB “must ‘give deference to the

judgment of each agency of the employee’s

performance in light of the agency’s assessment of its

own personnel needs and standards’” (citation

omitted)), superseded in part on other grounds by

statute, Whistleblower Protection Act of 1989, Pub. L.

No. 101-12, 103 Stat. 16; Hollander v. Off. of Pers.

Mgmt., 39 M.S.P.R. 195, 198–99 (1988) (Board will

“ordinarily give great deference” to the agency’s

interpretation

statute

“with

whose

implementation it is charged,” unless there are

“compelling reasons to conclude that such an

interpretation is erroneous or unreasonable”), aff’d

sub nom. Horner v. Hollander, 895 F.2d 759 (Fed. Cir.

1990). This deference is founded in the Board’s role as

an adjudicatory body exercising none of the

managerial authority statutorily assigned to

executive agencies like OPM. See Lachance v. Devall,

178 F.3d 1246, 1258 (Fed. Cir. 1999) (The Board “may

not … infringe upon an agency’s exclusive domain as

workforce manager, for to do so would frustrate the

framework of the [CSRA].”).

For example, the Board’s review of agencyselected penalties flows from the familiar arbitraryand-capricious

standard

requiring

agency

“consideration of the relevant factors” and no “clear

error of judgment.” Rodriguez v. Dep’t of Veterans

Affs., 8 F.4th 1290, 1302 (Fed. Cir. 2021) (quoting

Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402, 416 (1971)); accord Sayers v. Dep’t of

Veterans Affs., 954 F.3d 1370, 1377–78 (Fed. Cir.

2020). In Douglas v. Veterans Administration, 5

M.S.P.B. 313, 331–32 (1981), the Board listed factors

“recognized” as relevant to agency penalty selection by

“[c]ourt decisions and OPM and Civil Service

Commission issuances.” So long as “the agency did

conscientiously consider the relevant factors and did

strike a responsible balance within tolerable limits of

reasonableness” in setting its penalty, the Board will

not “insist that the balance be struck precisely where

the Board would choose to strike it.” Id. at 332–33; see

also Rodriguez, 8 F.4th at 1302. And even in the

instances in which the Board finds an agency’s

penalty unreasonable, the Board lacks “independent

authority to set penalties” itself. Lachance, 178 F.3d

at 1247. Instead, the Board may only reduce an

agency’s chosen penalty to the “maximum reasonable

penalty” or another reasonable penalty designated by

the agency. Id. at 1260.23

23 Congress has limited the MSPB’s authority to mitigate

penalties for certain types of adverse actions. See 38 U.S.C.

§ 714(d)(3)(C) (limiting mitigation of penalties against employees

of the Department of Veterans Affairs). If the Board determines

that an agency’s penalty is unreasonable in those cases, it must

In practice, the MSPB grants very few

appellate Petitions for Review—approximately one in

ten since 2000.24 Board decisions are almost always

unanimous (and therefore not along partisan lines).

For example, based on amici’s familiarity with

internal Board statistics from March 2022 to March

2025, it is estimated that more than 99% of decisions

were unanimous during that three-year period alone.

Finally, although the Board may order an

agency or employee to comply with its final decision,

it exercises limited authority to enforce those orders.

Federal statute provides that the Board may order

that a non-compliant employee “shall not be entitled

to receive payment for service” during a period of noncompliance. 5 U.S.C. § 1204(e)(2)(A). While amici are

aware of instances when a Board’s decision has

referenced this authority, amici recall no instance

when it was actually exercised during their tenures.

As a result, if that provision was formally revoked, it

would have little effect on the Board’s practices.

C. The Board also has limited original

jurisdiction over (i) certain actions brought by the

Special Counsel; (ii) requests for informal hearings by

career appointees removed from the Senior Executive

Service for performance deficiencies; and (iii) certain

adverse actions against administrative law judges

(“ALJs”), see 5 U.S.C. § 7521. The Board’s exercise of

original jurisdiction over career appointees’ informal

hearings and ALJ adverse actions is narrow. With

remand to the agency for reconsideration. Brenner v. Dep’t of

Veterans Affs., 990 F.3d 1313, 1325 (Fed. Cir. 2021).

24 See Appendix A, Analysis of MSPB Decisions (2000–2024).

regard to the informal hearings, the Board simply

designates an official to conduct an informal hearing

regarding the career appointee’s removal, which is not

subject to appeal. See 5 C.F.R. §§ 1201.143–1201.145.

And the Board has limited authority to consider

agency proposals to remove, suspend, furlough, or

enter a reduction in pay or grade for an ALJ. 5 C.F.R.

§ 1201.137.

As in its review of agency penalties, see supra

§ II.B, the Board lacks independent authority to

discipline ALJs. See Dep’t of Health & Hum. Servs. v.

Jarboe, 2023 M.S.P.B. 22, ¶ 9 (2023). In these cases,

the Board’s role is only to determine whether good

cause exists for the adverse action, as required by 5

U.S.C. § 7521. A “finding of good cause for removal

does not bind the employing agency to actually remove

[an ALJ], but merely authorizes it to do so.” Jarboe,

2023 M.S.P.B. 22, ¶ 9. “The employing agency retains

discretion to take the Board-approved action, impose

a lesser sanction, or take no action at all.” Id.

The Board’s authority to review certain matters

upon the Office of Special Counsel’s request is

similarly narrow and entirely reactionary. If the

Special Counsel “determines that there are reasonable

grounds to believe that the personnel action was

taken, or is to be taken, as a result of a prohibited

personnel practice,” it may request “any member of”

the Board to order a stay. 5 U.S.C. § 1214(b)(1)(A)(i).25

25 The Board may also issue “any order that may be necessary to

protect a witness or other individual from harassment during an

investigation by the Special Counsel” upon motion by the Special

Counsel. 5 C.F.R. § 1201.146(a)–(b).

The Board member has very little discretion when

considering such a request, and “shall order” the

requested stay unless they determine that “under the

facts and circumstances involved, such a stay would

not be appropriate.” 5 U.S.C. § 1214(b)(1)(A)(ii). The

presumption in favor of a stay is so strong that if the

request is not denied within 3 calendar days, it “shall

be granted.” 5 U.S.C. § 1214(b)(1)(A)(iii).

Moreover, the stay itself is simply designed to

“maintain the status quo ante while the OSC and the

agency involved resolve the disputed matter,” and to

“minimize the consequences of an alleged prohibited

personnel practice” in the meantime. Special Counsel

v. Dep’t of Transp., 74 M.S.P.R. 155, 157 (1997). A

request to extend a stay—considered by the full

Board, 5 U.S.C. § 1214(b)(1)(B)—is reviewed with

similar deference: the Board must review the record

in the light most favorable to OSC and grant the

extension request so long as the OSC’s underlying

claim is “not clearly unreasonable.” Dep’t of Transp.,

74 M.S.P.R. at 158. The stay may be terminated by the

Board at any time. See 5 C.F.R. § 1201.136(d).

A review of publicly available MSPB annual

reports from 2000 through 2024 confirms that the

Board’s exercise of its original jurisdiction accounts

for an incredibly small percentage of its adjudicatory

work.26 During those years, the Board decided more

than 24,000 petitions for appellate review in federal

personnel actions.27 Over that period, less than 2% of

the Board’s decisions were made in its original

26 The FY 2009 MSPB Annual Report is not available.

27 See Appendix A, Analysis of MSPB Decisions (2000–2024).

jurisdiction.28 This includes Board decisions in cases

when OSC requested a stay or when an agency took

adverse action against an administrative law judge,

with each category accounting for approximately 0.5%

or less of MSPB decisions since 2000.29

D. Like Article III courts30 and non-Article III

courts,31 the MSPB may promulgate rules of practice

and procedure. See 5 U.S.C. § 1204(h). In amici’s

experience, the Board uses this power as a court

would, regulating the presentation of cases and

conduct of parties appearing before it. Under 5 U.S.C.

§ 1305, the Board also has limited authority to

prescribe regulations “for the purpose” of 5 U.S.C.

§ 7521, which requires an MSPB hearing and “good

cause established” for adverse actions against ALJs.

The Board’s scant regulations regarding adverse

actions against ALJs—primarily concerning the form

and content of filings, response deadlines, and service

requirements—confirm the Board’s rulemaking in

this area is likewise focused on internal procedures.

See 5 C.F.R. §§ 1201.137–1201.142.32

28 See id.

29 See id.

30 See 28 U.S.C. § 2071; see also Fed. R. App. P. 47(a)(1); Fed. R.

Civ. P. 83(a)(1).

31 See, e.g., 10 U.S.C. § 944 (United States Court of Appeals for

the Armed Forces); 26 U.S.C. § 7453 (United States Tax Court);

28 U.S.C. § 2503(b) (United States Court of Federal Claims); 38

U.S.C. § 7264 (United States Court of Appeals for Veterans

Claims).

32 The procedural rights for ALJ adverse actions described by 5

C.F.R. § 1201.139(b) are the same rights provided by statute to

The Board also has authority to review OPM

rules and regulations upon request, or on its own

motion, to determine if the regulation or its

implementation causes a person to commit a

prohibited personnel practice. 5 U.S.C. § 1204(f)(1). In

our experience—and based on reporting by the

MSPB—these types of review are exceedingly rare.

MSPB’s annual reports since 2000 confirm that

petitions for review of OPM rules and regulations

accounted for approximately 0.4% of the MSPB’s

decisions.33 Those same reports do not indicate any

instance when the MSPB issued a sua sponte decision

regarding any OPM rule or regulation, and amici can

recall no instance during their tenures when such a

review occurred.

III. As Designed by the Civil Service Reform

Act, the MSPB is Functionally the Court of

First Review for Federal-Employment

Issues.

The Board “spends nearly all of its time

adjudicating ‘inward-facing personnel matters,’” with

approximately 98% of its decisions relating to

petitions for review of federal-employee claims. Harris

v. Bessent, 775 F.Supp.3d 164, 176 (D.D.C. 2025).34

The Board must “passively wait” for these cases to be

brought, and all of the Board’s decisions over

employee claims are reviewable by Article III courts.

any federal employee subject to OSC disciplinary action before

the Board. Compare 5 C.F.R. § 1201.139(b), with 5 U.S.C.

§ 1215(a)(2).

33 See Appendix A, Analysis of MSPB Decisions (2000–2024).

34 See also Appendix A, Analysis of MSPB Decisions (2000–2024).

Harris, 775 F.Supp.3d at 176. Those courts rely on the

Board’s subject-matter expertise to adjudicate federalemployee claims in the first instance and to facilitate

subsequent Article III review. See Elgin v. Dep’t of

Treasury, 567 U.S. 1, 19, 22–23 (2012) (analogizing

the MSPB’s factfinding role to that of federal

magistrate judges and noting its role in addressing

employment-law questions prior to Article III review

of constitutional ones); Sayers v. Dep’t of Veterans

Affs., 954 F.3d 1370, 1377–78 (Fed. Cir. 2020) (noting

“importance” of MSPB’s first review of whether an

agency’s penalty is arbitrary and capricious).

The “painstaking detail” of the CSRA’s review

framework for federal-employment claims makes it

“fairly discernible” that “Congress intended covered

employees … to proceed exclusively through the

statutory review scheme.” Elgin, 567 U.S. at 10–12.

This “integrated scheme of administrative and judicial

review … was designed to replace an outdated

patchwork of statutes and rules” that resulted in

federal-employee suits “in district courts across the

country.” Id. at 13 (quotation marks omitted) (quoting

United States v. Fausto, 484 U.S. 439, 444–45 (1988)).

In creating that arrangement, Congress relied on forcause removal protection to ensure the Board’s

adjudicatory independence. See 5 U.S.C. § 1202(d); see

also 5 U.S.C. § 7701(d)(1)(B) (“Nothing in this title

shall be construed to permit the Office [of Personnel

Management] to interfere with the independent

decisionmaking of the Merit Systems Protection

Board.”); S. Rep. No. 95-969, at 7 (1978), as reprinted

in 1978 U.S.C.C.A.N. 2723, 2729 (“Members’ terms

will last 7 years, with removal only for cause. … As a

result of this structure, the Board should be insulated

from the kind of political pressures that have led to

violations of merit principles in the past.”); id.

(“Absent such a mandate for independence for the

Merit Board, it is unlikely that the committee would

have granted the Office of Personnel Management the

power it has or the latitude to delegate personnel

authority to the agencies.”).

“At the core of its plan to achieve the[] dual

objectives” of managerial efficiency and employee

procedural protection, the CSRA “created two

separate, distinct, and independent bodies—OPM and

the Board—in recognition of the problems inherent in

having a single authority serve as judge in its own

case.” Lachance v. Devall, 178 F.3d 1246, 1254 (Fed.

Cir. 1999). The D.C. Circuit’s conclusion that

Congress may not limit removal of MSPB members

undermines the “separation of … managerial and

oversight functions” which “forms a cornerstone of the

[CSRA],” destabilizing both the detailed review

scheme it created and the modern merit-system

principles it sought to protect. Id. at 1255.

CONCLUSION

For the reasons set forth above, the petition for

a writ of certiorari should be granted. In the

alternative, the Court should hold the petition pending

Trump v. Slaughter, No. 25-332, and then grant,

vacate, and remand to the D.C. Circuit.

Respectfully submitted,

KATHRYN ALI

Counsel of Record

ELIZABETH C. LOCKWOOD

COLE LAUTERMILCH

ALI & LOCKWOOD LLP

501 H Street NE, Ste. 200

Washington, DC 20002

(202) 651-2475

katie.ali@alilockwood.com

Counsel for Amici Curiae

James M. Eisenmann,

Raymond Limon, &

Jessica Parks

APRIL 2026

APPENDIX

APPENDIX TABLE OF CONTENTS

Appendix A

Analysis of MSPB Decisions (2000–2024)………1a

APPENDIX A: ANALYSIS OF MSPB

DECISIONS (2000–2024)

Appellate Jurisdiction2

368

234

131

126

170

136

17.3%

18.7%

17.3%

0.0%

11.7%

12.8%

4.3%

19.4%

18.5%

Addendum

Case PFRs

Decided

2,129

1,252

428

145

1,022

2,963

876

736

Merits

PFRs

Granted

Total

Cases1

2,251

1,399

488

195

1,140

3,069

1,017

890

Merits

PFRs

Decided

Year

2024

2023

2022

2021

2020

2019

2018

2017

2016

2015

2014

2013

114

118

131

105

1 Total Cases includes all Board decisions in its original

jurisdiction and on appellate Petitions for Review. Percent of

Decisions is calculated as a portion of Total Cases. Board data

separately tracks decisions in cases remanded from courts or

returned by the EEOC, reopened cases, reviews of arbitration

decisions, compliance referrals from AJs, reviews of AJ stay

rulings, and requests to stay Board decisions. These categories

make up a very small portion of the Board’s work. See infra n.3.

The Board separately tracks Petitions for Review in merits

cases and Addendum cases, i.e., follow-up petitions for attorney’s

fees, damages in discrimination or whistleblower cases, or

compliance. MSPB annual reports do not include data regarding

the results of Addendum case Petitions.

Appellate Jurisdiction

833

196

849

145

639

104

1,211

136

1,023

130

1,162

151

1,383

105

1,306

973

111

1,073

1,131

151

1,225

152

22,359 2,796

89.5% 11.2%

23.5%

17.1%

16.3%

11.2%

12.7%

13.0%

7.6%

6.0%

11.4%

7.5%

13.4%

12.4%

12.5%

—

Addendum

Case PFRs

Decided

Merits

PFRs

Granted

Merits

PFRs

Decided

Total

Year

Cases

2012

956

2011

969

2010

748

2008

1,347

2007

1,168

2006

1,292

2005

1,526

2004

1,429

2003

1,112

2002

1,206

2001

1,277

2000

1,504

24,996

% of Decisions

104

103

132

133

130

114

117

124

130

238

2,258

9.0%

Original Jurisdiction

OSC Stay

Requests

Reg. Review

Requests

Actions

Against

ALJs

Total

Cases

2,251

1,399

488

195

1,140

3,069

1,017

890

Cases

Decided

Year

2024

2023

2022

2021

2020

2019

2018

2017

2016

2015

2014

2013

Original Jurisdiction

Cases

Decided

OSC Stay

Requests

Reg. Review

Requests

Actions

Against

ALJs

Total

Cases

956

969

748

1,347

1,168

1,292

1,526

1,429

1,112

1,206

1,277

1,504

24,996

% of Decisions3

Year

2012

2011

2010

2008

2007

2006

2005

2004

2003

2002

2001

2000

379

1.5%

127

0.5%

107

0.4%

3 Appendix A’s source data: MSPB FY2024 Annual Report at 4,

9, available at https://www.mspb.gov/about/annual_reports/

MSPB_FY_2024_Annual_Report.pdf; MSPB FY2023 Annual

Report

16,

available

https://www.mspb.gov/about/annual_reports/MSPB_FY_2023_A

nnual_Report.pdf; MSPB FY2022 Annual Report at 10, 17,

available

https://www.mspb.gov/about/annual_reports/

MSPB_FY_2022_Annual_Report_2022671.pdf; MSPB FY2021

Annual

Report

available

https://www.mspb.gov/about/annual_reports/MSPB_FY_2021_A

nnual_Report_1900943.pdf; MSPB FY2020 Annual Report at 11,

available

https://www.mspb.gov/about/annual_reports/

MSPB_FY_2020_Annual_Report_1800131.pdf; MSPB FY2019

Annual

Report

13,

available

https://www.mspb.gov/about/annual_reports/MSPB_FY_2019_A

nnual_Report_1697108.pdf; MSPB FY2018 Annual Report at 11,

available

https://www.mspb.gov/about/annual_reports/

MSPB_FY_2018_Annual_Report_1592474.pdf; MSPB FY2017

Annual

Report

13,

22,

available

https://www.mspb.gov/about/annual_reports/MSPB_FY_2017_A

nnual_Report_1481375.pdf; MSPB FY2016 Annual Report at 15,

26, available at https://www.mspb.gov/about/annual_reports/

MSPB_FY_2016_Annual_Report_1374269.pdf; MSPB FY2015

Annual

Report

15,

26,

available

https://www.mspb.gov/about/annual_reports/MSPB_FY_2015_A

nnual_Report_1275851.pdf; MSPB FY2014 Annual Report at 17,

28, available at https://www.mspb.gov/about/annual_reports/

MSPB_FY_2014_Annual_Report_1179694.pdf; MSPB FY2013

Annual

Report

29,

38,

available

https://www.mspb.gov/about/annual_reports/MSPB_FY_2013_A

nnual_Report_1038222.pdf; MSPB FY2012 Annual Report at 35,

45, available at https://www.mspb.gov/about/annual_reports/

MSPB_FY_2012_Annual_Report_792967.pdf; MSPB FY2011

Annual

Report

27,

35,

available

https://www.mspb.gov/about/annual_reports/MSPB_FY_2011_A

nnual_Report__714934.pdf; MSPB FY2010 Annual Report at 25,

32, available at https://www.mspb.gov/about/annual_reports/

MSPB_FY_2010_Annual_Report_576602.pdf; MSPB FY2008

Annual

Report

19,

26,

available

https://www.mspb.gov/about/annual_reports/MSPB_FY_2008_A

nnual_Report_531109.pdf; MSPB FY2007 Annual Report at 23,

30, available at https://www.mspb.gov/about/annual_reports/

MSPB_FY_2007_Annual_Report_351906.pdf; MSPB FY2006

Annual

Report

19,

26,

available

https://www.mspb.gov/about/annual_reports/MSPB_FY_2006_A

nnual_Report_277921.pdf; MSPB FY2005 Annual Report at 26,

32–33, available at https://www.mspb.gov/about/annual_reports/

MSPB_FY_2005_Annual_Report_278041.pdf; MSPB FY2004

Annual

Report

25–26,

35,

available

https://www.mspb.gov/about/annual_reports/MSPB_FY_2004_A

nnual_Report_278028.pdf; MSPB FY2003 Annual Report at 15–

16, 23, available at https://www.mspb.gov/about/annual_reports/

MSPB_FY_2003_Annual_Report_277968.pdf; MSPB FY2002

Annual

Report

22–23,

31,

available

https://www.mspb.gov/about/annual_reports/MSPB_FY_2002_A

nnual_Report_277954.pdf; MSPB FY2001 Annual Report at 34–

35, 44, available at https://www.mspb.gov/about/annual_reports/

MSPB_FY_2001_Annual_Report_277945.pdf; FY2000 Annual

Report

24–25,

34,

available

https://www.mspb.gov/about/annual_reports/MSPB_FY_2000_A

nnual_Report_277484.pdf.

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