The Trump Administration, using a range of means, has sought to decimate the federal civil service. That has included efforts to fire probationary employees, initiate large-scale reductions in force at multiple agencies, and place large groups of employees on administrative leave. At the same time, the administration has hampered the Merit Systems Protection Board (MSPB), the agency responsible for adjudicating federal workers’ employment rights, by depriving it of a working quorum—a step that threatens to impede judicial review of the administration’s personnel policies. Nevertheless, federal workers have options, both for seeking relief from a compromised MSPB and for arguing that they should be entitled to vindicate their rights in federal district court instead.

Many federal employees have a right under the civil service laws to contest serious adverse personnel actions taken against them—first before the MSPB, and then, after a final Board decision, in the U.S. Court of Appeals for the Federal Circuit. Courts have held that that remedial system is exclusive—that is, employees must generally challenge adverse actions through the MSPB review process and cannot begin their cases in district court. Several federal courts have recently denied relief in civil service cases on that ground.

The MSPB’s work, however, has ground to a halt. It is a three-member body, and two members are required for a quorum. At present, it has only one member because President Trump recently fired the former chair, Cathy Harris, a move the Supreme Court preliminarily upheld. Without a quorum, the MSPB itself cannot act. This paralysis was the result when, from 2017 to 2022, the MSPB also lacked a quorum—which led to a backlog of 3,800 cases.

Even if the MSPB cannot act, though, federal employees might still be able to obtain judicial review—or, alternatively, substantial relief. A federal employee’s MSPB appeal begins as a matter of course with an initial decision by an administrative judge. Those judges can issue initial decisions even if the Board itself lacks a quorum. And, by statute, initial decisions can become final MSPB decisions subject to Federal Circuit review if neither party petitions for review before the full Board.

If an employee wins in the initial decision, the government would be able to freeze the case and preclude judicial review by petitioning for review before the quorumless MSPB. But in the meantime, agency judges can award employees substantial interim relief, including potentially reinstatement, pay, and back pay. And if an employee loses before the judge, the government would presumably lack a basis to petition for review before the MSPB. The employee could thus obtain judicial review in the Federal Circuit simply by allowing the initial decision to become final Board action by operation of law.

Nevertheless, the government might succeed in blocking federal employees’ access to the federal courts altogether by, for instance, finding grounds to petition for MSPB review in cases where it won before an agency judge. If that happens, litigants might consider a more aggressive approach: arguing that the MSPB’s loss of a quorum newly vests federal district courts with original jurisdiction over federal workers’ employment claims.

In Thunder Basin Coal Co. v. Reich, the Supreme Court explained when a statutory review scheme, like the civil service statutes’ MSPB system, impliedly strips district courts of jurisdiction. To determine whether a particular claim is “of the type that Congress intended to be reviewed within th[e] statutory scheme” instead of in district court, courts assess (1) whether precluding district court jurisdiction would “foreclose all meaningful judicial review of the claim”; (2) whether the claim is “wholly collateral” to the “statute’s review provisions”; and (3) whether the claim is “outside the agency’s expertise.”

If the government uses the absence of an MSPB quorum to preclude judicial review, that could give federal employees an opening to argue that, under Thunder Basin, district court jurisdiction is appropriate. Congress could not have intended to “foreclose” judicial review to federal employees with personnel claims in that manner. As a general matter, the Supreme Court understands that “Congress rarely allows claims about agency action to escape effective judicial review.” And, indeed, Congress has specifically provided for judicial review of personnel claims. Permitting the executive branch to unilaterally preclude judicial review would allow it to effectively nullify the civil service laws. Litigants might make this argument even as to claims that fall squarely within the statute’s review provisions and the MSPB’s expertise. The Supreme Court has been clear that Congress might “not intend to limit jurisdiction” even “if the [Thunder Basin] factors point in different directions.”

To be sure, the D.C. Circuit has explained that matters might be channeled even when the statutory review process is not capable of providing immediate or even complete relief. But its reasoning has been that, notwithstanding those limitations, “the statutory scheme” does not “foreclose[]” “all meaningful judicial review.” If the government uses the absence of an MSPB quorum to systematically preclude judicial review, that would not be the case.

A district court judge rejected a similar argument when the MSPB last lacked a quorum. In Jolley v. United States,¹1. 549 F. Supp. 3d 1 (D.D.C. 2021). the pro se plaintiff argued that his claim—which would ordinarily have been channeled to the MSPB—should be allowed to proceed in federal district court because the MSPB’s lack of a quorum would have forestalled review. The court “sympathize[d] with the Plaintiff’s predicament and underst[ood] his frustration. But it [found] no basis, statutory or otherwise, to say that a court’s subject matter jurisdiction can turn on the presence or absence of political gridlock.” Jolley, however, did not consider the Thunder Basin factors—a framework in which it ought to matter that the government can use the absence of an MSPB quorum to block judicial review of federal personnel actions. Moreover, while the court may have been reluctant to accord jurisdictional significance to a fluid political situation (one that was resolved by the restoration of the MSPB’s quorum the next year), the facts are different now. The administration’s hostility to workers and civil service laws suggests an affirmative intention to make judicial review impossible.

Other courts rejected the argument that the absence of a quorum made recourse to the MSPB futile under the doctrine of exhaustion.²2. See Greenlaw v. Acosta, 2019 WL 2163000 (N.D. Cal. May 17, 2019), aff'd in part, vacated in part, remanded sub nom. Greenlaw v. Su, 2023 WL 3055227 (9th Cir. Apr. 24, 2023); King v. Barrett, 2020 WL 2745695 (D.S.C. May 27, 2020). Those decisions should not necessarily bear on the channeling analysis. Under Thunder Basin, the question is whether “meaningful” judicial review would be “foreclosed” absent district court jurisdiction—likely a less demanding standard than the futility exception’s requirement that an adverse administrative outcome be “certain[].”

At the same time that the Trump Administration is taking a wrecking ball to federal agencies, it is also taking steps to block review of its personnel actions. Federal workers should consider ways both to continue pursuing claims within the MSPB’s review scheme, compromised as it is, and to challenge that scheme head on.

Jordan Ascher is a Policy Counsel at Governing for Impact.