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President Donald Trump listens during a news conference with Japanese Prime Minister Shigeru Ishiba in the East Room of the White House, Friday, Feb. 7, 2025, in Washington (AP Photo/Alex Brandon).
A federal judge on Tuesday reinstated, for now at least, a member of the Merit Systems Protection Board after she sued to regain her position following her removal by President Donald Trump.
On Feb. 10, the 45th and 47th president sent Cathy Harris packing without an explanation. This would-be firing, however, came with a conclusive termination letter that did not offer an explanation.
Under federal law, members of the MSPB are appointees who serve from their appointment until the end of their term unless they are removed “for inefficiency, neglect of duty, or malfeasance in office.”
In a 21-page memorandum opinion and order, U.S. District Judge Rudolph Contreras, a Barack Obama appointee, determined that the statute’s three firing mechanisms simply do not cover “differences of political opinion.” Moreover, the court ruled, the federal worker board must maintain a certain level of independence from politics.
At a basic level, the judge credits the words of the originating statute, the Civil Service Reform Act of 1978 (CSRA), as fully controlling when it comes to determining how membership on the MSPB pans out.
“Any member may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office,” Contreras recites the statute.
In order to determine the extent of what this phrase in the statute means, however, the judge turns to case law.
Here, the removal language in question falls under the purview of a 1935 U.S. Supreme Court case that keeps quasi-legislative and quasi-judicial agencies largely insulated from the whims of the president.
“Because the MSPB falls within the scope of [the high court case], Congress has the power to specify that members of the MSPB may serve for a term of years, with the President empowered to remove those members only for inefficiency, neglect of duty, or malfeasance in office,” the court’s order reads. “The President did not indicate that any of these reasons drove his decision to terminate Harris. The Court thus concludes that Harris has demonstrated that she is likely to show her termination as a member of the MSPB was unlawful.”
The court also cites another case in which the U.S. president was found to have “no such power” to remove and stack an adjudicatory body “merely because he wanted his own appointees on such a Commission.”
The work of the MSPB itself is integral to how the court views the removal language in light of precedent.
The court helpfully sums the agency up:
The Board reviews federal employee appeals of adverse actions “which [are] appealable to the Board under any law, rule, or regulation,” including those related to removal or suspension for periods greater than fourteen days. It may order federal agencies and employees to comply with its decisions and conduct studies “relating to the civil service” for the President and Congress. The MSPB also reviews “rules and regulations of the Office of Personnel Management.” The MSPB’s final decisions are generally subject to judicial review.
“In enacting the CSRA, Congress exercised its power to regulate the civil service,” the order goes on. “It defined certain prohibited personnel practices, to include discrimination, loyalty oaths, coercion to engage in political activity, and retaliation against whistleblowers.”
In other words, the MSPB is a very limited-purpose agency that only deals with federal workers and has essentially no interaction with the public. This relationship to the regulated, the court reasons, means there is even less of a risk to “individual liberty — and therefore even more of a reason to maintain true independence from the executive.”
The thrust of the ruling is that the board is more or less a creature of statute — or something not entirely unlike an adjunct of Congress which answers to Congress through appropriations, to the president through appointments, and to the courts through judicial review.
“[T]he MSPB’s mission and purpose require independence,” Contreras writes. “Direct political control over the MSPB would have limited effect on the President’s implementation of his policy agenda. It would instead neuter the CSRA’s statutory scheme by allowing high-ranking government officials to engage in prohibited practices and then pressure the MSPB into inaction. The MSPB’s independence is therefore structurally inseparable from the CSRA itself.”
The judge elaborates, at length:
The CSRA envisions that the Board “is to be nonpartisan; and it must, from the very nature of its duties, act with entire impartiality.” The CSRA also “fixes a term of office.” The MSPB’s duties are “quasi judicial,” in that it conducts preliminary adjudication of federal employees’ claims, which may then be appealed to the Federal Circuit. Although the MSPB lacks its own rulemaking authority, Congress intended the agency to aid its legislative goals by regularly transmitting reports to Congress regarding the Board’s functions. It is additionally evident that Congress hoped to “preclude the President from influencing the [Board] in passing on a particular claim.”
Harris was appointed to her current term in June 2022 and her commission expires in March 2028.
The temporary restraining order puts the plaintiff back in her job as chair and enjoins the relevant administration officials “from removing Harris from her office or in any way treating her as having been removed, denying or obstructing Harris’s access to any of the benefits or resources of her office, placing a replacement in Harris’s position, or otherwise recognizing any other person as a member of the MSPB in Harris’s position.”
The court anticipates Harris will also file for a preliminary injunction. If she does, a hearing on that motion will be held on March 3.
