Amicus Brief

LDAD Urges Supreme Court to Protect Independent Adjudication in Federal Workforce Case

June 28, 2021

May 7, 2026

Editorial credit: Shuterstock

Lawyers Defending American Democracy (LDAD), joined by University of Minnesota Law School Professor Nick Bednar and Georgetown Law Center Professor Victoria Nourse, has filed an amicus brief with the Supreme Court of the United States in Harris v. Bessent, supporting a petition for certiorari filed by Merit Systems Protection Board (MSPB) Chair Cathy Harris.

The case centers on the summary termination of Harris by the President, despite a federal statute providing that MSPB members may be removed “only for inefficiency, neglect of duty, or malfeasance in office.”

The MSPB’s role is to adjudicate challenges by federal employees to adverse actions by their employers. In this case, however, a panel of the United States Court of Appeals for the District of Columbia Circuit upheld the President’s action, reasoning that the MSPB “wield[s] substantial executive power” and that the President may, therefore, remove without cause principal officers of such agencies.

LDAD’s brief describes how the creation of multi-member adjudicatory bodies dates back to before the ratification of the Constitution and were embraced by early Congress and Presidents. These bodies were deliberately structured to ensure impartial decision-making, free from partisan influence, as a matter of basic due process. Thomas Jefferson explained that the decisions of such bodies must be based only on “the law itself”, a bedrock principle of due process. The Supreme Court has recognized this principle in affirming limitations on the removal of members of an adjudicatory body. 

As Professor Nourse explains, “One would think it common sense that adjudicatory bodies must act impartially; with this brief, we demonstrate a history of multi-member commissions adjudicating claims under oaths of impartiality that reaches to the Founding.”

The brief describes in detail how the MSPB operates as an adjudicatory body in addressing disputes between the federal government and its employees, functioning in a manner closely analogous to a court. Its decisions are final unless reversed on appeal in federal court, and its rulemaking authority is confined to managing its own proceedings. 

Professor Bednar underscores the stakes, “Congress created the MSPB to protect the civil service, recognizing that independence was essential to achieving that goal.”

Why This Matters

If the MSPB is treated as a purely executive agency whose principal officers may be removed without cause, the President would be able to inject partisan influence into the adjudication of claims by federal employees, depriving them of basic due process rights. More ominously, it is hard to imagine any independent agency that could not be characterized as performing executive functions that would subject its members to termination without cause.

About the Brief

LDAD Board member and Georgetown Law Professor Mitt Regan coordinated work on the brief. Professor Nourse prepared the section on the history of adjudicatory bodies, and Professor Bednar and LDAD volunteer lawyer Lynn Armentrout prepared the section on the MSPB’s adjudicatory functions.  Georgetown Law students Samantha Sporn, Sydney Martens, Mathias Valenta, Esther Park, and Gladwin An provided outstanding assistance. 

Stay Informed —

Be the first to know about LDAD news by following us on social media (LinkedIn, Instagram, Bluesky, and Facebook) and by signing up for our newsletter.

featured press