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

No. 25-1110

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 a Writ of Certiorari to the

United States Court of A ppeals for the

District of Columbia Circuit

BRIEF OF THE GOVERNMENT ACCOUNTABILITY

PROJECT AS AMICUS CURIAE IN SUPPORT OF

PETITIONER’S PETITION FOR CERTIORARI

Thad M. Guyer

Counsel of Record

Of Counsel for The Government

Accountability Project

1612 K Street NW, Suite 808

Washington, DC 20006

(206) 954-1293

thadg@whistleblower.org

Counsel for Amicus Curiae

392418

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

INTERESTS OF AMICUS CURIAE . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

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

I.

M SPB IN DEPEN DENCE IS T HE

STRUCTUR A L FOUNDATION OF

THE FEDERAL WHISTLEBLOWER

SYSTEM CONGRESS BUILT . . . . . . . . . . . . . . 4

A. Congress Designed the MSPB as

the Adjudicator y T r ibunal That

M a ke s Fe d e r a l W h i s t l e blo w e r

Protection Meaningful . . . . . . . . . . . . . . . . . .4

B. The For-Cause Removal Protection

in § 1202(d) Is the Mechanism That

Makes the Substantive Whistleblower

Rights of § 2302(b)(8) Operable . . . . . . . . . . 6

C. M S P B I n d e p e n d e n c e I s A l s o

Required by the Fifth Amendment

D u e P r o c e s s R i g ht s of E ve r y

Federal Whistleblower . . . . . . . . . . . . . . . . . 8

ii

Table of Contents

Page

II. T H E D E C I S I O N B E L O W H A S

ALREADY TRIGGERED THE VERY

H A RMS § 1202(d) WA S ENACTED

TO PREVENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

A. The September 2025 OLC Opinion

Compounds the Threat by Instructing

MSPB Members How to Rule on

Pain of Removal . . . . . . . . . . . . . . . . . . . . . . . 9

B. Vacancy Creation Invites a Corrosive

Incentive Structure for Prospective

Adjudicators . . . . . . . . . . . . . . . . . . . . . . . . . 11

C. Federal Whistleblowers—and the

Public They Protect—Are Reading

the Signal . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

D. T he Document ed Cost of Ch i l l:

Backlogs, Fraud Detection, and the

Economics of Silence . . . . . . . . . . . . . . . . . . 15

III. THE QUESTION IS RECURRING,

OF NAT IONA L I M P ORTA NCE ,

A ND WA RR A NTS THIS COURT ’S

REVIEW NOW . . . . . . . . . . . . . . . . . . . . . . . . . . 16

A. The Unitary Executive Narrative

Is Contradicted by the Founding

Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

iii

Table of Contents

Page

B. The Decision Below Jeopardizes

Every Article I Court, Not Just the

MSPB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

C. Downstream Litigation Pressure Is

Already Building . . . . . . . . . . . . . . . . . . . . . 17

D. Slaught er Ca nnot Resolve T h is

Question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

iv

TABLE OF CITED AUTHORITIES

Page

Cases

Am. Ins. Co. v. 356 Bales of Cotton (Canter),

26 U.S. (1 Pet.) 511 (1828) . . . . . . . . . . . . . . . . . . . . . 3, 4

Arnett v. Kennedy,

416 U.S. 134 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Ashwander v. TVA,

297 U.S. 288 (1936) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Briggs v. Nat’l Council on Disability,

68 M.S.P.R. 296 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . 8

Caperton v. A.T. Massey Coal Co.,

556 U.S. 868 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Cleveland Board of Education v. Loudermill,

470 U.S. 532 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Dep’t of Homeland Sec. v. MacLean,

574 U.S. 383 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 13

Ex parte Bakelite Corp.,

279 U.S. 438 (1929) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Freytag v. Comm’r,

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

Gov’t Accountability Project v. OPM,

No. 1:25-cv-00347 (D.D.C.) . . . . . . . . . . . . . . . . . . . . . . 2

v

Cited Authorities

Page

Harrow v. Dep’t of Def.,

601 U.S. 480 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Humphrey’s Executor v. United States,

295 U.S. 602 (1935) . . . . . . . . . . . . . . . . . . . . 5-8, 16, 19

In re Murchison,

349 U.S. 133 (1955) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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

No. 25A662, 2025 WL 3684278

(U.S. Dec. 19, 2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Ortiz v. United States,

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

Roth v. Brownell,

215 F.2d 500 (D.C. Cir. 1954) . . . . . . . . . . . . . . . . . . . . 8

Seila Law LLC v. CFPB,

591 U.S. 197 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 18

Trump v. Slaughter,

146 S.Ct. 18 (2025) (mem.) . . . . . . . . . . . . . . . . . . 18, 19

Tumey v. Ohio,

273 U.S. 510 (1927) . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Wiener v. United States,

357 U.S. 349 (1958) . . . . . . . . . . . . . . . . . . . . . . 7, 16, 19

vi

Cited Authorities

Page

Williams v. United States,

289 U.S. 553 (1933) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Withrow v. Larkin,

421 U.S. 35 (1975) . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 11

Statutes and Legislative Materials

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

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

5 U.S.C. § 1202(d) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 9, 11

5 U.S.C. § 1204(a)(1)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

5 U.S.C. § 2302(b)(8) . . . . . . . . . . . . . . . . . . . . . . . 2, 6, 7, 13

5 U.S.C. § 7513(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

5 U.S.C. § 7701(c)(2)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

5 U.S.C. § 7703(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1926 United States Customs Court,

Pub. L. No. 69-304, § 2, 44 Stat. 669 . . . . . . . . . . . . .16

An Act making provision for the reduction of the

Public Debt, ch. 47, § 2, 1 Stat. 186 (1790) . . . . . . . . 16

Civil Service Reform Act of 1978, Pub. L. No. 95-454,

92 Stat. 1111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

vii

Cited Authorities

Page

Whistleblower Protection Act of 1989,

Pub. L. No. 101-12, 103 Stat. 16 . . . . . . . . . . 1, 3, 4, 6, 7

Other Authorities

ACFE, Report to the Nations (2024 ed.) . . . . . . . . . . . . 15

Nichola s R . Bed na r & Todd Ph i l l ips,

Commission Quorums (Draft July 2025),

available at SSRN 5347384 . . . . . . . . . . . . . . . . . . . . 12

Br. of Cathy A. Harris as A micus Curiae,

Trump v. Slaughter, No. 25-332 (U.S. filed

Oct. 21, 2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

Merit Sys. Prot. Bd., A nnual Performance

Plan for FY 2026–2027 (Apr. 3, 2026) . . . . . . . . . . . 12

Merit Sys. Prot. Bd., Blowing the Whistle: Barriers

to Federal Employees Making Disclosures . . . . . . 15

The Merit Systems Protection Board’s Authority

to Adjudicate Constitutional Questions

w ithin an Administrative Proceeding,

49 Op. O.L.C. (slip op.) (Sept. 26, 2025) . . . . . 9-11, 13, 16

Tom Devine, Hear ing on Replacing NonPartisan Civil Servants with Political Hires

Before the Senate Homeland Security and

Governmental Affairs Committee (Sept. 17, 2024) . . . 14

U.S. Dep’t of Justice, Fraud Statistics—Overview

(2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

1

INTERESTS OF AMICUS CURIAE

The Government Accountability Project (“GAP”)

is an independent, nonpartisan, nonprofit organization

that promotes government accountability by protecting

whistleblowers, advancing occupational free speech, and

empowering citizen activists. Founded in 1977, GAP is the

nation’s oldest whistleblower protection organization. For

nearly five decades, GAP has led or been on the front lines

of campaigns to enact or defend virtually every modern

federal whistleblower statute, including the Whistleblower

Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16,

and the 1994 and 2012 amendments to that legislation.1

GAP’s work depends on the existence of a functioning,

independent Merit Systems Protection Board. The

MSPB is the adjudicatory tribunal that makes federal

whistleblower protection enforceable—the body before

which civil servants seek vindication when they are

retaliated against for disclosing waste, fraud, and abuse.

Because federal employees are the only workers who can

bring retaliation claims before the MSPB, the Board’s

institutional integrity is not merely a peripheral concern;

it is a fundamental precondition on which federal employee

whistleblower protection rests. GAP regularly assists

whistleblowers navigating MSPB proceedings and has

witnessed firsthand how the Board’s independence—or

1. Pursuant to Supreme Court Rule 37.6, amicus states that

no counsel for any party authored this brief in whole or in part,

and no person or entity other than amicus, their members, or

their counsel made a monetary contribution intended to fund the

preparation or submission of this brief. Pursuant to Rule 37.2,

counsel of record for all parties received timely notice of the intent

to file this brief.

2

its absence—determines whether the statutory promise

of 5 U.S.C. § 2302(b)(8) has real-world meaning.

GAP’s experience is consistent with the historical

record: when the civil service is politicized, the institutional

mechanisms that enforce whistleblower protections

collapse. Congress created the merit-based civil service

in 1883 after decades of a corrupt spoilage system. The

assassination of President Garfield by a disgruntled officeseeker solidified the need to insulate federal service from

political influence. The Nixon Administration’s Malek

Manual, a blueprint for purging career civil servants and

replacing them with political loyalists, exposed during

the Watergate hearings, demonstrated how fragile that

safeguard can be when Executive power goes unchecked.

The current administration’s dismantling of the merit

system through mass terminations, Schedule Policy/

Career reclassifications, and the removal of independent

adjudicating authorities reprises that threat, invoking

tactics reminiscent of the Nixon-era effort and signaling

a return to the pre-1883 patronage system. In September

2024, GAP’s Legal Director testified before the Senate

Homeland Security and Governmental Affairs Committee

regarding precisely this danger. The concerns expressed

in that testimony have now materialized. GAP is also a

plaintiff in Government Accountability Project v. OPM,

No. 1:25-cv-00347 (D.D.C.), challenging the dismantling

of the merit-based civil service.

SUMMARY OF ARGUMENT

The Merit Systems Protection Board is not an ordinary

administrative agency. It is the adjudicatory tribunal

Congress created to stand between federal employees

3

and the political pressures of the Executive Branch—

the structural mechanism that makes the substantive

rights of the Whistleblower Protection Act and the Civil

Service Reform Act enforceable in practice, not merely

aspirational on paper. MSPB independence is compelled

not only by separation-of-powers principles but by the

Fifth Amendment’s guarantee of a neutral adjudicator

to every federal employee holding a statutory property

interest in continued employment. The founding record

confirms that this design is faithful to, not in tension with,

the original understanding of Article II.

The decision below upends that design. By holding

that MSPB members may be removed at will by the

President, the D.C. Circuit stripped the Board of the

independence that gives it constitutional meaning within

the legislative-court tradition this Court has recognized

since American Insurance Co. v. 356 Bales of Cotton,

26 U.S. (1 Pet.) 511, 534 (1828). The consequences of

eviscerating the independence that insulated the merit

system from unchecked political influence for nearly 150

years have already begun to manifest. In September 2025,

the Office of Legal Counsel issued an opinion directing

MSPB administrative judges how to rule in pending

termination cases—what the petition aptly characterizes

as “an instruction backed by the not-so-subtle threat

those members will face Petitioner’s fate should they

refuse.” Pet. 32. Simultaneously, the Board’s caseload has

surged to four times its annual historical workload while

its workforce has contracted, creating conditions under

which a captured or intimidated tribunal cannot deliver

the neutral adjudication Congress insisted upon in the

Civil Service Reform Act (CSRA).

4

These harms are systemic, accelerating, and beyond

the capacity of any lower court to arrest. Only this Court

can restore the structural safeguard that 143 years of

civil-service legislation—from the Pendleton Act through

the CSRA and WPA—was designed to provide.

ARGUMENT

I.

MSPB INDEPENDENCE IS THE STRUCTURAL

FOU N DAT ION OF T H E FEDER A L

W HIST LEBLOW ER SYSTEM CONGRES S

BUILT.

A.

Cong r e s s D e sig ne d t he M SPB a s t he

Adjudicatory Tribunal That Makes Federal

Whistleblower Protection Meaningful.

The Civil Service Reform Act of 1978 created the

Merit Systems Protection Board to serve a specific

function: neutral adjudication of federal employment

disputes. See Pub. L. No. 95-454, 92 Stat. 1111. As this

Court recently recognized, the MSPB was “established to

adjudicate federal employment disputes.” Harrow v. Dep’t

of Def., 601 U.S. 480, 482 (2024). That characterization

is precise. The Board does not make policy. It does not

promulgate substantive regulations. It does not bring

enforcement actions or initiate investigations of external

parties. It adjudicates—and Congress designed it to do

so with the independence befitting a tribunal exercising

quasi-judicial authority.

This design places the MSPB squarely within the

constitutional tradition of legislative courts that Congress

has established since the founding era. See Am. Ins.

Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511 (1828)

5

(Marshall, C.J.) (recognizing legislative courts as a

distinct constitutional category); Ex parte Bakelite Corp.,

279 U.S. 438 (1929); Williams v. United States, 289 U.S.

553 (1933). The petition traces this tradition in detail,

Pet. 17–24, and amicus does not repeat that doctrinal

analysis. What amicus can add is the perspective of an

organization that has spent decades working within the

system Congress built—and that can attest to why its

adjudicatory independence is not ornamental but essential.

The MSPB’s purely adjudicatory character is not an

accident of institutional evolution. It reflects a deliberate

legislative choice. Congress structured the Board as a

three-member body with staggered seven-year terms,

bipartisan composition requirements, and for-cause

removal protection. 5 U.S.C. §§ 1201, 1202. The members

are also prohibited from holding any other federal

positions in order to avoid conflicts of interest and insure

impartiality in adjudicating federal employee personnel

matters. Id. It gave the Board authority to hear appeals

from adverse personnel actions, § 7513(d), and to order

corrective and disciplinary action when it finds prohibited

personnel practices, § 1204(a)(1)–(3). And it routed judicial

review of MSPB decisions to the Federal Circuit, § 7703(b)

(1), the same court that reviews decisions of the Court of

International Trade and the Court of Federal Claims—

both, like the MSPB, legislative courts.

T he d ist i nct ion bet ween the MSPB a nd the

policymaking agencies this Court has addressed in its

recent removal-power cases could not be sharper. The

MSPB is not the Federal Trade Commission, which

Congress designed to exercise “quasi legislative” and

“quasi judicial” functions across a broad policymaking

domain. See Humphrey’s Executor v. United States, 295

6

U.S. 602, 624 (1935). It is not the Consumer Financial

Protection Bureau, whose single Director “possesses

the authority to promulgate binding rules,” “unilaterally

issue final decisions awarding legal and equitable relief

in administrative adjudications,” and “seek daunting

monetary penalties against private parties on behalf of

the United States in federal court.” Seila Law LLC v.

CFPB, 591 U.S. 197, 218-19 (2020). The government itself

conceded below that, by contrast, the MSPB “does not

establish policy,” “performs no investigations of external

parties,” “does not prosecute cases,” “does not initiate

disciplinary actions,” and lacks “enforcement units.” Pet.

9. Over ninety-five percent of the Board’s decisions are

unanimous. Id. The MSPB is, in every functional respect,

a court—and it is the court that federal whistleblowers

must rely on.

B. The For-Cause Removal Protection in § 1202(d)

Is the Mechanism That Makes the Substantive

Whistleblower Rights of § 2302(b)(8) Operable.

The Whistleblower Protection Act prohibits retaliation

against federal employees who disclose waste, fraud,

abuse, and dangers to public health and safety. 5 U.S.C.

§ 2302(b)(8). This Court has construed that provision

broadly, recognizing that Congress intended meaningful

protection for employees who serve the public interest. See

Dep’t of Homeland Sec. v. MacLean, 574 U.S. 383 (2015)

(holding that WPA protects disclosures not specifically

prohibited by statute, even when the employing agency

has promulgated regulations restricting disclosure).

But a substantive right without an independent

adjudicator to enforce it is a right in name only. Section

1202(d)—the provision at issue in this case—does not

7

exist in isolation. It is the structural prerequisite that

makes § 2302(b)(8) enforceable. When a whistleblower

files a retaliation complaint, that complaint is adjudicated

by the MSPB. If the Board members who decide that

complaint can be removed at will by the same President

whose appointees engaged in the retaliation, the statutory

right of § 2302(b)(8) is functionally nullified.

When Congress enacted the WPA in 1989, it built

upon the for-cause protection established in § 1202(d)—

thereby establishing substantive whistleblower rights

secured by an independent adjudicatory tribunal. The

link between procedural protection and substantive rights

is not abstract. In Wiener v. United States, 357 U.S. 349

(1958), this Court held that the President lacked power

to remove a member of the War Claims Commission—an

adjudicatory body—even though the statute contained no

explicit for-cause removal provision. The Court rejected

“the claim that the President could remove a member of

an adjudicatory body like the War Claims Commission

merely because he wanted his own appointees on such

a Commission,” concluding that “no such power is given

to the President directly by the Constitution.” Id. at 356.

The reasoning was functional: because the Commission

was “entirely free from the control or coercive influence,

direct or indirect, of either the Executive or the

Congress,” presidential removal at-will would destroy the

independence on which the body’s adjudicatory legitimacy

depended. Id. at 355-56 (quoting Humphrey’s Executor,

295 U.S. at 629). The same logic applies with equal—

indeed greater—force to the MSPB, where Congress did

enact an explicit for-cause removal provision.

8

C.

MSPB Independence Is Also Required by the

Fifth Amendment Due Process Rights of Every

Federal Whistleblower.

The structural case for MSPB independence is

reinforced by an independent constitutional guarantee.

Since Cleveland Board of Education v. Loudermill,

470 U.S. 532, 535 (1985), it has been settled that federal

employees with statutory “for cause” removal protection

holds a Fifth Amendment property interest in their

continued employment. See also Roth v. Brownell, 215 F.2d

500 (D.C. Cir. 1954); Briggs v. Nat’l Council on Disability,

68 M.S.P.R. 296 (1995). That property interest cannot be

adjudicated constitutionally by a tribunal whose members

serve at the pleasure of the defendant-Executive.

This Court has long recognized that “the substantive

right” may not be “viewed wholly apart from the procedure

provided for its enforcement.” Arnett v. Kennedy, 416 U.S.

134, 152 (1974). Nor may due process tolerate adjudicators

subject to coercive influence from a party to the dispute. See

Tumey v. Ohio, 273 U.S. 510 (1927); Caperton v. A.T. Massey

Coal Co., 556 U.S. 868, 876–877 (2009); Withrow v. Larkin,

421 U.S. 35, 46–47 (1975). If campaign contributions require

recusal under Caperton, direct, unreviewable, causeless

removal power held by the defendant is an a fortiori

violation.

This Fifth Amendment ground offers the Court a

narrower disposition consistent with Ashwander v. TVA,

297 U.S. 288, 347 (1936) (Brandeis, J., concurring). The

Court can grant review and vindicate MSPB independence

without reaching the broader question of Humphrey’s

Executor’s continuing vitality. That economy of decision

is itself a reason to grant certiorari.

9

II. T H E DECISION BELOW H A S A LREA DY

TRIGGERED THE VERY HARMS § 1202(d) WAS

ENACTED TO PREVENT.

A.

The September 2025 OLC Opinion Compounds

the Threat by Instructing MSPB Members

How to Rule on Pain of Removal.

At the threshold, the decision below violates a principle

older than the Republic: nemo iudex in causa sua—no

one may be a judge in his own cause. In every MSPB

case that matters, the Executive Branch is the defendant.

The government itself conceded below that the Board

“does not establish policy,” “performs no investigations

of external parties,” and “does not prosecute cases.” Pet.

9. Its role is exclusively that of a neutral arbiter between

two litigants—one of which is the Executive. The decision

below makes the adjudicator removable at will by that

very party. No neutral legal system in the common-law

tradition permits such an arrangement, and this Court

has rejected far milder conflicts. See Tumey, 273 U.S.

510; Caperton, 556 U.S. 868; Withrow, 421 U.S. at 46–47.

The September 2025 OLC opinion, discussed below, is the

predictable product of that structural conflict.

On September 26, 2025, the Office of Legal Counsel

issued a memorandum opinion titled The Merit Systems

Protection Board’s Authority to Adjudicate Constitutional

Questions within an Administrative Proceeding, 2025

WL 2817559 (O.L.C. Sept. 26, 2025). The opinion concluded

that MSPB administrative judges “must . . . resolve”

constitutional arguments raised by employing agencies

seeking to justify terminations—arguments grounded

in the proposition that the President possesses inherent

10

Article II authority to remove federal employees at will.

Id. at 1.

The opinion appears unremarkable on its face: it

reasons that “law” in 5 U.S.C. § 7701(c)(2)(C) encompasses

constitutional law, and that the MSPB therefore has

jurisdiction to consider constitutional defenses. But the

practical effect of the opinion is or will be extraordinary.

The OLC opinion instructs the Board’s adjudicators

to accept and resolve the Executive Branch’s own

constitutional arguments for the lawfulness of the

very terminations those adjudicators are charged with

reviewing. It warns that failure to do so could result in

the Board ordering reinstatement “against the will of the

President”—a framing that unmistakably conveys the

Executive’s hostility to any reading of the Constitution

that limits his authority in any way, however minor. Id. at 7.

As the petition observes, this directive amounts to

“an instruction backed by the not-so-subtle threat those

members will face Petitioner’s fate should they refuse.” Pet.

32. And that characterization is generous. The OLC opinion

was issued after the President had already purported

to remove Petitioner from the Board for asserting her

statutory right to remain in office—a sequence that

transforms the opinion from a legal memorandum into a

warning. Every administrative judge and Board member

who reads it understands the message: rule in the Executive

Branch’s favor, or risk the consequences.

This is the antithesis of what Congress intended when

it created the MSPB as a neutral adjudicatory body. A

“fair trial in a fair tribunal is a basic requirement of due

process,” and that principle “applies to administrative

11

agencies which adjudicate as well as to courts.” Withrow v.

Larkin, 421 U.S. 35, 46–47 (1975) (quoting In re Murchison,

349 U.S. 133, 136 (1955)). A tribunal whose members have

been told how to rule—and shown what happens to those

who resist—cannot satisfy that requirement. The OLC

opinion does not merely threaten MSPB independence in

the abstract. It operationalizes the threat in the context

of specific, pending cases involving the employment rights

of thousands of federal workers.

B. Vacancy Creation Invites a Corrosive Incentive

Structure for Prospective Adjudicators.

The OLC opinion does not exist in isolation. It is one

element of a two-part mechanism—what might be termed

the vacancy-plus-directive pincer—that undermines the

Board’s independence from both directions simultaneously.

The first component is vacancy creation through

removal. By purporting to remove a sitting Board

member, the Executive demonstrates that § 1202(d) is a

dead letter—that members who assert their statutory

independence will be displaced. This sends a signal

not only to remaining Board members but to every

prospective nominee: the path to appointment runs

through demonstrated willingness to accommodate the

Executive’s preferences.

The second component is the OLC directive itself,

which tells the remaining adjudicators how to rule.

Together, these mechanisms create precisely the corrosive

incentive structure that Congress designed § 1202(d) to

prevent—one in which sitting members are intimidated

and future members are selected for pliability.

12

The scale of the resulting institutional crisis is

documented in the Board’s own planning materials.

In fiscal year 2025, the MSPB received 20,335 initial

appeals—approximately four times its historical annual

workload. Merit Sys. Prot. Bd., Annual Performance

Plan for FY 2026–2027, at 5 (Apr. 3, 2026). This surge,

which began on February 9, 2025, was driven by mass

terminations and reductions in force across the federal

government. At the same time, the Board’s workforce

contracted from 183 to 163 employees following a January

2025 hiring freeze, and the Board was furloughed for

six weeks between October 1 and November 12, 2025,

due to a lapse in appropriations. Id. The Board’s own

performance targets are expressly conditioned on the

continued existence of “a quorum of Board members”—a

condition that is not guaranteed. Id.

These are not speculative harms. The Board is

simultaneously overwhelmed with cases, understaffed,

operating under an OLC directive that instructs its

adjudicators how to rule, and led by an Acting Chairman

installed after the Executive purported to remove the

member who refused to comply. The vacancy-manipulation

theory that amicus advanced in the D.C. Circuit—that atwill removal power corrupts not only through the act of

removal but through the vacancies it creates—has moved

from prediction to present reality. See Nicholas R. Bednar

& Todd Phillips, Commission Quorums, 78 Stan. L. Rev.

(forthcoming 2026), https://papers.ssrn.com/sol3/papers.

cfm?abstract_id=5347384 (last revised Aug. 22, 2025)

(documenting how presidential removals that destroy a

quorum may frustrate the executive’s constitutional duty

to faithfully execute the laws).

13

C.

Federal Whistleblowers—and the Public They

Protect—Are Reading the Signal.

The consequences of a compromised MSPB are not

confined to the Board’s docket. They radiate outward

through the entire federal workforce, reaching every civil

servant who might otherwise come forward to disclose

waste, fraud, or danger to public safety.

Consider the paradigm this Court examined in

MacLean. A TSA air marshal received intelligence

that hijackers planned to “smuggle weapons in camera

equipment or children’s toys through foreign security”

and then “fly into the United States . . . into an airport

that didn’t require them to be screened.” 574 U.S. at 387.

The marshal disclosed the threat. The agency retaliated.

The case went to the MSPB—and this Court ultimately

vindicated the disclosure under § 2302(b)(8). That

sequence depended on the existence of an independent

tribunal willing to rule against the employing agency.

Without it, the marshal’s disclosure would have ended

his career with no recourse—and the public would never

have learned of the threat.

Now transpose that scenario to the present moment.

A federal employee discovers a comparable threat. She

knows that disclosing it will provoke retaliation from

agency leadership. She knows that her retaliation claim

will be adjudicated by an MSPB whose members have

been shown—through the removal of Petitioner and

the issuance of the OLC opinion—what happens to

adjudicators who rule against the Executive Branch.

The rational calculation for that employee is silence.

And silence has consequences that extend far beyond

14

the individual whistleblower—consequences measured

in uninvestigated fraud, undetected safety hazards, and

uncorrected abuses of authority.

GAP works directly with these individuals. For nearly

fifty years, amicus has counseled federal employees

weighing the decision to come forward. The single most

important factor in that decision—more important than

the strength of the legal claim, more important than the

severity of the wrongdoing—is whether the employee

believes the system will protect her if she speaks. The

events of the past year have shattered that belief for a

generation of civil servants.

The concrete stakes of that shattered belief are not

abstract. MSPB-protected disclosures have, within the

memory of this Court, forced delivery of Mine-Resistant

Armored Protection vehicles to Iraq and Afghanistan—

reducing land-mine casualties from 60% of fatalities to

5%; prevented Federal Air Marshals from abandoning

defensive missions before a confirmed Al Qaeda “rerun

of 9/11”; exposed the dangers of Vioxx; and brought

blanket domestic surveillance to congressional oversight

committees in disclosures that led to passage of the

USA Freedom Act. Testimony of Thomas Devine, Legal

Director, Gov’t Accountability Project, Before the S.

Comm. on Homeland Sec. & Governmental Affairs 7–8

(Sept. 17, 2024). Each disclosure reached the public

because the discloser trusted that an independent MSPB

would stand between her and retaliation. Each would have

likely died in silence under the regime the decision below

installs.

15

D.

The Documented Cost of Chill: Backlogs,

Fraud Detection, and the Economics of Silence.

The harm from a captured or quorum-less Board

is measurable. When the MSPB’s quorum was restored

in March 2022, a backlog of approximately 3,800 cases

had accrued since 2017, with officials estimating five to

six years to catch up. Pet. App. 97a. Petitioner Harris

personally participated in nearly 4,500 decisions between

June 2022 and February 2025, clearing roughly 99% of

that backlog. Pet. App. 180a. The quorum-loss pattern

that the decision below now invites would reproduce that

multi-year denial of adjudication, on a workforce of three

million civil servants.

The economic stakes are equally concrete. The

Association of Certified Fraud Examiners has repeatedly

found that employee tips are the single largest source

of occupational-fraud detection—responsible for

approximately 43% of detected fraud, more than all

other detection methods combined. ACFE, Report to the

Nations (2024 ed.). The Department of Justice reported

approximately $2.6 billion in False Claims Act recoveries

in FY 2024, the vast majority traceable to whistleblowerinitiated qui tam actions. U.S. Dep’t of Justice, Fraud

Statistics—Overview (2024). MSPB’s own 2011 survey,

Blowing the Whistle: Barriers to Federal Employees

Making Disclosures, identified fear of retaliation as the

principal deterrent to reporting observed misconduct.

Politicizing the adjudicator of retaliation claims eliminates

the only structural reassurance that moves observation

into disclosure.

16

III. THE QUESTION IS RECURRING, OF NATIONAL

IMPORTANCE, AND WARRANTS THIS COURT’S

REVIEW NOW.

A.

The Unitary Executive Narrative Is

Contradicted by the Founding Record.

The government’s position rests on a claim that

Article II was originally understood to vest the President

with plenary, at-will removal authority over every officer

exercising executive power. The founding record refutes

that claim. In 1790, the First Congress—acting with many

of the Framers—created the Sinking Fund Commission

to perform “economically critical executive and policy

functions” and directed that two of its five directors be

officials the President “could not remove.” An Act making

provision for the reduction of the Public Debt, ch. 47, § 2, 1

Stat. 186 (1790); see Pet. App. 228a. The First Bank of the

United States, chartered in 1791, afforded the President

no removal authority over its members at all. 1 Stat. 191,

191–93. The Second Bank, chartered in 1816, gave the

President control over only five of twenty-five directors. 3

Stat. 266, 269. Territorial judges were shielded beginning

in 1789. 1 Stat. 50.

This lineage is not an originalist curiosity. It is

the direct historical antecedent of the legislative-court

tradition that culminated in the 1926 United States

Customs Court, Pub. L. No. 69-304, § 2, 44 Stat. 669, and,

ultimately, the MSPB. Wiener preserved that tradition

long before Humphrey’s Executor, see 357 U.S. at 356,

and no OLC opinion or Presidential signing statement has

previously called Wiener into doubt. Pet. App. 236a–37a.

The Executive’s current position is not a reassertion

17

of original understanding. It is a departure from two

centuries of settled interbranch practice.

B. The Decision Below Jeopardizes Every Article

I Court, Not Just the MSPB.

The D.C. Circuit’s reasoning is not limited to the

MSPB. If members of the Board—a purely adjudicatory

body exercising congressionally delegated authority—

may be removed at will, the same logic extends to every

non-Article III tribunal Congress has created: the Tax

Court, the Court of Appeals for Veterans Claims, the

Court of Appeals for the Armed Forces, and the military

appellate courts this Court addressed in Ortiz v. United

States, 585 U.S. 427 (2018). See also Freytag v. Comm’r,

501 U.S. 868 (1991) (Tax Court as a “Court of Law” under

the Appointments Clause). The decision below cannot be

cabined. As Judge Pan warned in dissent, “the MSPB is

so clearly adjudicatory and free of quintessential executive

responsibilities that if it exercises” an impermissible

degree of executive authority, “then every agency does.”

Harris v. Bessent, 160 F.4th 1235, 1267 (2025) (Pan, J.

dissenting); Pet. App. 61a.

This is precisely the kind of question that warrants

this Court’s intervention at the certiorari stage—one that

has immediate, cascading consequences for the structural

integrity of the federal judicial system.

C.

Downstream Litigation Pressure Is Already

Building.

The practical consequences of the decision below are

already visible in the courts. As the petition documents,

18

the Court has faced “serious legal questions about

the implications” of unchecked removal power over

adjudicatory officers. Pet. 32–33; see Margolin v. Nat’l

Ass’n of Immigr. Judges, No. 25A662, 2025 WL 3684278

(2025) (mem.). Federal employees are increasingly

routing disputes away from the MSPB and into Article

III courts—a development that reflects a rational loss

of confidence in the Board’s ability to provide neutral

adjudication. At the same time, the Board’s extraordinary

caseload—20,335 initial appeals in FY 2025 alone—

strains an institution that was designed to process

approximately 5,000 cases per year. The system Congress

built is breaking under pressures it was never designed

to absorb, and the constitutional question at the root of

that breakdown remains unresolved.

D.

Slaughter Cannot Resolve This Question.

Trump v. Slaughter, 146 S. Ct. 18 (2025) (mem.),

concerns the Federal Trade Commission—a policymaking

body whose single Director “possesses the authority

to promulgate binding rules,” “unilaterally issue

final decisions awarding legal and equitable relief in

administrative adjudications,” and “seek daunting

monetary penalties against private parties on behalf of

the United States in federal court.” Seila Law, 591 U.S. at

218-19. Whatever the Court decides in Slaughter about the

removal protections applicable to policymaking agencies,

that decision will not—and should not—resolve whether

Congress may insulate members of a purely adjudicatory

tribunal that does not make policy, does not bring

enforcement actions, and does not initiate investigations.

19

Petitioner herself urged this distinction in her amicus

brief in Slaughter, asking the Court not to “invalidate

purely ‘adjudicatory bod[ies]’ that Congress has chosen to

house within the executive branch.” Br. of Cathy A. Harris

as Amicus Curiae at 14–15; Trump v. Slaughter, No. 25332 (U.S. filed Oct. 21, 2025). The Justices’ own questions

at oral argument suggest receptivity to that distinction.

The Chief Justice noted that even if Humphrey’s Executor

“may be the issue” for policymaking agencies, “it doesn’t

mean that Wiener falls with it”—and specifically identified

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

Court or all those others” as potentially distinct. Pet. 13.

Justice Kavanaugh similarly observed that “non-Article

III courts” are “different.” Id.

Amicus respectfully urges the Court to grant the

petition and address the constitutionality of for-cause

removal protection for adjudicatory officers on its own

terms. In the alternative, amicus supports holding the

petition pending Slaughter and granting, vacating, and

remanding in light of that decision—a disposition that

would preserve the question for full consideration rather

than allowing it to be resolved by the unrebutted D.C.

Circuit opinion below.

20

CONCLUSION

The petition for a writ of certiorari should be granted.

In the alternative, the Court should hold this petition

pending its decision in Trump v. Slaughter, No. 25-332,

and thereafter grant, vacate, and remand.

Respectfully submitted,

Thad M. Guyer

Counsel of Record

Of Counsel for The Government

Accountability Project

1612 K Street NW, Suite 808

Washington, DC 20006

(206) 954-1293

thadg@whistleblower.org

Counsel for Amicus Curiae

April 22, 2026