Fired MSPB member appeals to Supreme Court

Attorneys for Cathy Harris, the Democratic member of the Merit Systems Protection Board who was fired by President Trump last year, on Wednesday appealed her removal to the Supreme Court, arguing that her case is legally distinct from the Supreme Court’s ongoing examination of Humphrey’s Executor.

Harris, along with Senate-confirmed officials at a slew of independent and quasi-judicial agencies, was removed from her post in February 2025, three years in advance of the end of her prescribed term, despite the law establishing the agency that adjudicates federal workers’ appeals of adverse personnel actions stipulating that she can only be fired for cause.

Last December, a three-judge panel found that Congress cannot “restrict the president’s ability” to remove officials who “wield substantial executive power.” Days later, the Supreme Court heard arguments in Trump v. Slaughter, a case in which the Trump administration has sought to overturn the 1935 Humphrey’s Executor decision through its firing of Federal Trade Commissioner Anne Slaughter, which ruled that Congress may institute removal protections for officials at quasi-judicial agencies.

In Harris’ appeal, her attorneys argue that the removal protections at MSPB are distinct from those in Slaughter’s case. That’s because the MSPB is a “purely adjudicative” body, protected by the 1953 precedent Wiener v. U.S. and whose tradition can be traced back to “legislative courts” as described by Chief Justice John Marshall in the early 19th Century.

“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,” the appeal states. “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.”

Harris’ attorneys said that the structure of the FTC and NLRB are more akin to MSPB’s precursor agency, the Civil Service Commission, than its current structure. The 1978 Civil Service Reform Act effectively placed the CSC’s policy and management functions into the new Office of Personnel Management, and left investigation and adjudication of employee appeals to the MSPB. And in 1989, those investigative functions were taken away and given to the newly-created Office of Special Counsel.

And, the attorneys, wrote, justices have already suggested during oral arguments in Trump v. Slaughter last December that overturning Humphrey’s Executor necessitates also overturning Wiener.

“Members of this court likewise indicated that for-cause removal protections for adjudicatory bodies pose a distinct constitutional question from whether FTC commissioners must be removable at will,” they wrote. “See, e.g., [Chief Justice John Roberts] (noting that ‘it strikes me that Humphrey’s may be the issue,’ that ‘it doesn’t mean that Wiener falls with it.’”

Harris’ appeal comes as the Trump administration has taken steps to tighten its grips on MSPB leadership and chip away at its caseload. Last September, the Justice Department’s Office of Legal Counsel issued a slip opinion suggesting that MSPB members “must” adjudicate agencies’ constitutional claims of “Article II” authority to remove employees across government when hearing those workers’ appeals. And last month, OPM issued proposed regulations seeking to take control over suitability and reduction-in-force appeals from its quasi-judicial counterpart.

The appeal warns that if Harris can be removed without cause, the flood gates could open to further politicization of purely adjudicative agencies, like the U.S. Tax Court or the Court of Appeals for Veterans Claims.

“Every Article I court now lives underneath ‘the Damocles’ sword of removal,’” the attorneys wrote. “The president can now demand a Tax 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.”