Federal employees seeking to challenge the Trump Administration’s unprecedented efforts to dismantle federal agencies and decimate the civil service have faced a dilemma. The federal Civil Service Reform Act (CSRA) generally permits employees to contest serious adverse personnel actions only before an administrative body, the Merit Systems Protection Board (MSPB), rather than in federal district court, with eventual judicial review in the Federal Circuit. At the same time, the Trump Administration has removed the MSPB’s former chair, a move the Supreme Court has preliminarily upheld despite MSPB members’ statutory removal protections. Deprived of a quorum, the MSPB cannot adjudicate federal employees’ appeals, and, in many cases, employees will be unable to obtain judicial review.

I have previously raised the possibility that employees in this situation might argue that they should be able to proceed to district court. Under Thunder Basin Coal Co. v. Reich, the question is whether Congress intended for particular claims to be channeled to a special statutory scheme. Congress, which “rarely allows claims about agency action to escape effective judicial review,” could not have intended for the President to essentially negate the CSRA by disabling the MSPB and “foreclos[ing]” all review of federal employees’ claims.

In a significant recent decision, National Association of Immigration Judges v. Owen, the Fourth Circuit appeared to agree, remanding a case for the district court to consider whether Congress would have intended for claims to be channeled in light of the Trump Administration’s actions against the MSPB and the Office of Special Counsel, another agency charged with enforcing the civil service laws.

Specifically, the National Association of Immigration Judges had brought a constitutional challenge to a Biden Administration “policy that requires immigration judges to obtain permission before speaking publicly on issues relating to immigration.” The district court “dismissed for lack of jurisdiction,” concluding that the immigration judges (IJs) “must pursue their challenge . . . before the MSPB.”

The Fourth Circuit vacated and remanded. While the court of appeals agreed that the IJs “would be required to bring [their] case through [the] administrative scheme” “[w]hen the Civil Service Reform Act functions as designed,” it “t[ook] notice that the function of the MSPB and Special Counsel, contrary to the CSRA’s text and purpose, has recently been called into question.” Specifically, the court observed “that during the pendency of this case, the President removed the Special Counsel” and deprived the MSPB of a quorum. More fundamentally, the President’s actions chipped away at the MSPB’s independence, a crucial aspect of the scheme designed by Congress. Although “Congress left little doubt about the importance of an independent MSPB and Special Counsel free from any control or direction by the President,” “the Government has argued that the removal protections enshrined in the CSRA are violations of separation of powers, thereby calling into question the constitutionality of a critical aspect of the CSRA, and the continued vitality of the statute’s adjudicatory scheme.”

All this, the court said, “call[s] into question whether the CSRA continues to function as Congress intended for purposes of the Thunder Basin analysis.” Specifically, “Congress may well have intended the CSRA to strip district courts of jurisdiction only because it understood that the President could not exercise unfettered control over the Special Counsel and MSPB. If that understanding proves to be incorrect, then a reevaluation of Congress’s intent under Thunder Basin may be required.” The court “le[ft] that issue, should it arise, to the district court to address in the first instance” on remand.

This is a significant initial victory for federal workers, who have been denied relief on channeling grounds in several cases challenging the Trump Administration’s aggressive personnel policies. It also represents a pragmatic judicial response to the President’s—and the Supreme Court’s—adoption of the unitary executive concept of presidential power. If the Constitution requires that the President be able to fire MSPB members and the Special Counsel at will, then Congress could not have intended for challenges to federal personnel actions—in which, of course, the executive branch is an interested party—to proceed through those bodies, since it designed them to be independent. Otherwise, the Trump Administration would effectively assume the role of both respondent and adjudicator in personnel actions—one neat trick to nullify the civil service laws’ substantive and procedural protections for federal workers.

Jordan Ascher is a Policy Counsel at Governing for Impact.