Continuing developments in federal employees’ legal challenges to Trump administration policies have renewed the question of jurisdiction. At the close of 2025, the Trump administration faced a rare setback in one such suit: the Supreme Court denied the government’s request to stay a discovery order. Then, just days into the new year, a Ninth Circuit court reasserted the district court’s jurisdiction, despite the government’s argument that the law required such cases to be channeled elsewhere.
The Civil Service Reform Act of 1978 (CSRA) established the architecture for federal employee rights: not only the statutes protecting them, but also the independent executive agencies created to provide due process. The CSRA also restricts the forums available to federal employees to appeal adverse employment actions: MSPB for individuals, the FLRA for unions—not district court.
And yet in the maelstrom of legal battles that followed President Trump’s February 2025 directive to initiate RIFs, not all of these court challenges have been following these statutorily prescribed channels. Neither MSPB’s former lack of quorum nor the government shutdown were the central reason. Some suits allege that the administration’s actions gave them no choice but to skip the standard procedure. Moreover, some courts have lent credence to the deeper question underlying these “out-of-place” court challenges:
Under what (if any) conditions can an adjudicative body like MSPB lose its exclusive claim to jurisdiction?
Jurisdiction and Channeling: The CSRA’s Exclusive Administrative Review Scheme
A preliminary question for courts is jurisdiction. Before considering the merits, courts must establish that they are the proper forum for the case before them. In many federal employment cases, district courts are not that forum by statute.
The Civil Service Reform Act of 1978 (CSRA) entitles federal employees to due process, including review of adverse actions taken against them or prohibited personnel practices (5 U.S.C. §7701). Congress empowered MSPB and FLRA with authority, tools, and guardrails so they would ensure employee rights are protected in accordance with Merit System principles. To that end, MSPB and FLRA have original, exclusive jurisdiction in such matters. Employees are “channeled” through the CSRA review scheme and precluded from seeking review in district court. Appeals may find their way to the federal circuit, but only as part of that administrative procedure when appealing a final decision from MSPB (5 U.S.C. §7703).
By design, the independent executive agencies established by the CSRA ought to play a central role in employees’ challenges to the Trump administration’s large-scale RIFs and other employment policies. A number of these challenges, however, have been brought to district court instead of CSRA review channels. The defense (the government) has appealed to the channeling doctrine in such cases, arguing that district courts lack jurisdiction.
This argumentative path is well trodden. SCOTUS’s decision in Elgin v. Department of Treasury, 567 U.S. 1 (2012), would seem to substantiate the defense’s argument that the CSRA precludes district court jurisdiction. In Elgin, the Court held that Congress, through the CSRA, provided MSPB with everything required to provide covered employees with adequate and meaningful judicial review of covered actions, including constitutional claims. The fact that the CSRA makes an exception for discrimination-based (EEO) violations to be filed in district court makes it clear that Congress intended to channel other employee and union challenges through the CSRA review scheme alone (5 U.S.C. § 7702(a)(1)(B)).
This defense has served the government well in many cases. For example, when USAID employees brought their challenge to U.S. District Court for the District of Columbia in February 2025, the Court denied their motion for a preliminary injunction for jurisdictional reasons: USAID employees’ challenge to personnel changes falls within the exclusive ambit of the CSRA, FSA, and FSLMRS statutory schemes.
Again, in the U.S. District Court of Massachusetts, several federal employee unions sought a TRO to prevent OPM from carrying out the deferred resignation program. Again, the Court found it lacked jurisdiction: such cases should be channeled through the CSRA statutory scheme.
The government’s argument that district courts lack jurisdiction under the CSRA has not always succeeded, however. Some district courts and courts on the federal circuit have found that the CSRA does not strip district courts of jurisdiction in the cases before them.
So why, then, have some courts determined they do have jurisdiction? Part of the answer lies in a key difference in application of the same guiding principle: Congressional intent.
Thunder Basin: When Congressional Intent and Agency Execution Clash
In drafting the CSRA and its channeling requirements, Congress intended to concretize merit system principles by guaranteeing federal employees access to meaningful review of their personnel claims. Congress did not intend for the CSRA to deny federal employees access to meaningful review. A simple enough assumption—and central to the Supreme Court decision in Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994). This case centered on the question of when statutory review mechanisms could strip district courts of jurisdiction.
Thunder Basin has appeared in all of these employee/union v. government cases: AFGE v. OPM, NAIJ v. Owen, AFGE v. OPM. Why? Because this precedent provides the litmus test that courts turn to when determining whether or not a given statutory framework, like the CSRA review scheme, rules out district court jurisdiction: the Thunder Basin factors.
Distilled and simplified for our purposes, the Thunder Basin factors ask:
- If we consider how the CSRA is laid out, is it reasonably clear that Congress intended to deny jurisdiction to district courts?
- If we do not allow the federal employee(s) and/or union(s) before us to bring this challenge to district court, can they still receive meaningful judicial review within the CSRA review scheme?
SCOTUS themselves applied the Thunder Basin test in the above-referenced case, Elgin v. Department of Treasury. The Court found that the administrative channels established in the CSRA did have exclusive jurisdiction in that employment challenge: no less so for the challenge being constitutional in nature.
Justice Alito dissented, however, and posed Thunder Basin another way. It is not enough to ask whether the administrative process affords meaningful review, he argued, but also whether it is “fairly discernible” that Congress intended to prevent federal employees in such a situation from filing a regular lawsuit in district court. To that end, he asks: “[W]hy would it?” Justice Alito concludes, “Because I believe Congress would have been very surprised to learn that it implied this result when it passed the CSRA, I respectfully dissent.” The alluded-to “result,” here, is stripping district courts of jurisdiction in such a case, thereby imposing a level of inefficiency and ineffectiveness that Congress would surely not have intended.
Elgin was a very different case from the federal employee challenges to Trump administration policies in the courts now. Still, Justice Alito’s reasoning has an element of rhyme with that of those judges arguing for district court jurisdiction: For cases like this one, the CSRA review scheme does not function in a way that is aligned with its statutory mission (i.e., its reason for existing in the first place).
With Elgin, Justice Alito emphasized the inefficiency of precluding jurisdiction from district courts. In recent cases NAIJ v. Owen, AFGE v. OPM, AFGE v. Trump, the concern is less with a needlessly circuitous review process which makes the CSRA inefficient at fulfilling its statutory mission. Rather, these current cases allege a fundamental dysfunction which makes the CSRA review scheme unable to fulfill its statutory mission at all. Moreover, this dysfunction is so pronounced, they claim, that if jurisdiction were restricted to the CSRA process, federal employees would lose access to meaningful review—something Congress did not intend. Some courts (the 4th and 9th Circuits, for example) have used this functionalist interpretation of channeling to vest district courts with jurisdiction.
Another way to phrase the question underlying this functionalist view of jurisdiction is: Do federal employees lose their right to review of adverse personnel actions just because the OSC and MSPB are not functioning?
Courts are far from agreement on this, but the question itself is not new. What is notable is the basis for courts’ functionalist considerations. It is one thing for MSPB to be “not functioning” because of an administrative, procedural issue like a lack of quorum or government shutdown. It is another matter entirely for courts to question the functioning of MSPB when agency doors are open and the lights are on.
NAIJ v. Trump: “Circumstances That May Have Undermined the Functioning of the CSRA’s Adjudicatory Scheme”
The Executive Office for Immigration Review (EOIR) updated its personnel policy in 2021 to prohibit immigration judges from speaking in any official capacity, including any discussion of subject matter related to their official duties, without prior approval. The National Association of Immigration Judges (NAIJ) challenged the policy on First and Fifth Amendment grounds. They bypassed the CSRA administrative process and instead brought their claims to district court.
The U.S. District Court for the Eastern District of Virginia dismissed NAIJ’s case on jurisdictional grounds: it should be channeled to the CSRA review scheme, not district court. This is where the higher court—the U.S. Court of Appeals for the 4th Circuit—disagreed.
Why Did the District Court Interpret Jurisdiction Differently Than the Federal Circuit?
Both the U.S. District Court and the 4th Circuit Court of Appeals applied the same Thunder Basin test to the same case, but with different results. The district court ruled it lacked jurisdiction, the circuit court determined they did have jurisdiction and remanded the matter back to the district court.
It is hardly uncommon to find opposing answers to the same legal question. But here, the 4th Circuit suggests the two courts were not even answering the same question at all: hence the direction to go back and reconsider. In doing so, the 4th Circuit makes a deeper claim on the nature of Congressional intent when interpreting statute to determine jurisdiction. Their claim is: When circumstances change, Congressional intent should be reevaluated in light of those changed circumstances.
In her opinion, U.S. District Judge Brinkema grounded the Court’s order to dismiss in Thunder Basin. She appeals to procedural safeguards like the Office of Special Counsel (OSC) which prevent legitimate employee claims (particularly constitutional ones) from being denied access to meaningful judicial review.
“The Special Counsel has every incentive to help wronged federal employees,” her opinion states. She goes on to note how “Congress empowered the independent [SC] officeholder to expose agency misbehavior and to ‘protect employees… from prohibited personnel practices.’ Ss1212(a).” She hinges that independence to begin and conduct investigations upon the fact that he is appointed by the president, can only be removed for cause, and does not suffer interference from other executive agencies. Thus, the Court rules, the NAIJ must proceed through the CSRA process.
Should Changing Circumstances Change Jurisdiction?
Since the District Court’s decision, President Trump fired Special Counsel Dellinger and two MSPB board members. It is in light of these developments that the 4th Circuit directed the district court to reconsider their dismissal on jurisdictional grounds. The firings, Judge Berner writes in her opinion, “raise serious questions” as to whether the administrative review process is still functioning in accord with Congress’s intentions.
The 4th Circuit agreed with the District Court on part of the Thunder Basin test: the claim being a constitutional one was not reason enough to bypass the CSRA process. The other consideration—whether precluding district court jurisdiction would foreclose meaningful judicial review—is where the courts diverged. It is too soon to say whether the courts actually disagree here, as the matter was considered in two very different situations.
U.S. District Judge Brinkema’s application of the Thunder Basin factors hinges upon an assumption that the safeguards Congress established for the CSRA process are holding. For example, her opinion claims Congress’s intent to channel such claims is clear from just how exacting and thorough the CSRA is: particularly with regards to those safeguards which should ensure the CSRA functions as Congress intended. And Congress intended the CSRA process, not district courts, to provide federal employees with an independent forum to file their complaints and receive a fair review.
But when we cannot rely upon a review mechanism to perform as intended, how can we justify giving that review mechanism exclusive jurisdiction? As Circuit Judge Berner points out, the purpose of the CSRA was to provide federal employees with a forum to appeal adverse personnel actions in accordance with Merit System Principles. However, President Trump’s removal of the Special Counsel and two MSPB Board members “raise[s] serious questions as to whether the CSRA’s adjudicatory scheme continues to function as intended.”
In order to function as Congress intended, the 4th Circuit reasons, the CSRA depends upon the independence of the MSPB and Special Counsel. The CSRA review scheme is designed to ensure MSPB’s and OSC’s independence by shielding them from politically motivated removal by the president. The president broke past those safeguards by removing the Special Counsel and two MSPB board members. Moreover, the government has been arguing in other cases that those very protections embedded in CSRA are themselves unconstitutional.
Functionalist Jurisdiction? NAIJ v. Neal Versus NAIJ v. Owen
Given the current questionability of the MSPB’s and OSC’s “functionality and independence,” the 4th Circuit returned the matter to the district court, directing them to “conduct a factual inquiry whether the CSRA continues to provide a functional adjudicatory scheme” with the understanding that the findings may merit a reconsideration of their jurisdiction.
The 4th Circuit does not contest that Congress intended the CSRA to take jurisdiction away from district courts. Nevertheless, they conclude:
“We cannot allow our black robes to insulate us from taking notice of items in the public record, including, relevant here, circumstances that may have undermined the functioning of the CSRA’s adjudicatory scheme.”
It is important to emphasize here that the 4th Circuit did not make a final decision on how “functional” these administrative agencies are. Instead, the court directed the lower court to make that decision. The task requires more fact finding: a task better suited to a district court than a court of appeals.
Even so, the defense (the government) has brought the matter to the Supreme Court: first, to request an administrative (temporary) stay of the 4th Circuit’s order. SCOTUS granted the temporary stay on December 5, only to deny the defense’s stay request December 9, 2025, a rare setback for the Trump administration.
The defense has since filed a petition for certiorari. The NAIJ has until March 2, 2026 to respond. If the government’s petition is successful, the question of channeling—“that the CSRA generally precludes challenges to federal personnel actions in district court”—will be argued before the Supreme Court.
Can These Federal Employee Legal Challenges Surmount the Channeling Problem?
The American Federation of Government Employees’ (AFGE) suits against President Trump and OPM have produced similar tug-of-war bouts over channeling. The question has moved back and forth between district courts, circuit courts, and SCOTUS. Like the NAIJ case, jurisdictional arguments have played a central role in the defense’s strategy here as well.
SCOTUS has granted the government’s requests for stays in these cases, halting lower-court orders to stop RIFs. However, SCOTUS has not issued explicit guidance on the channeling question. Their 8-1 decision to grant the government’s request for a stay of the preliminary injunction ordered by the District Court of Northern District of California (and upheld by the 9th Circuit) specifically addressed the likelihood of success on the merits, not jurisdiction.
This specificity gave the 9th Circuit room to argue that the district courts did have jurisdiction, and thus directed the suit—and discovery order for Agency RIF and Reorganization plans to be shared in camera, or, privately with the judge(s)—to proceed. On January 5th, the 9th Circuit further denied the defense’s request to reconsider their earlier denial of a rehearing (en banc).
In AFGE v. OPM, much like in the NAIJ case, the defense appealed to the CSRA’s channeling requirements. In response, District Court Judge Alsup’s opinion mirrored that of Circuit Judge Berner’s. He raised similar reservations in light of the appointment of Greer as acting special counsel, and described the FLRA as a “functionally impaired as a pathway to relief.” Judge Alsup tidily summarized the complicated issue:
“… the administrative schemes have stopped doing as much work as before (FLRA), have stopped doing any work at all (MSPB), or have started working for the other side (OSC).”
When making its case to SCOTUS, whether in applications for stay or cert petitions, the government has placed the channeling problem at center stage. They warn of the slippery slope bound to follow the 4th Circuit’s “functionalist approach to jurisdiction” in their stay application. Permitting such mutable interpretations of statute would require “constant relitigation” of any given agency-review scheme’s functionality. Furthermore, the defense claims, any dysfunction in the CSRA is a problem for Congress to remedy, not the courts.
But whether this will hold true—that it will be an act of Congress rather than a Supreme Court decision that determines the success of these cases—remains to be seen. Either way, this battle over jurisdiction will likely continue for some time before we get to the merits of these federal employees’ cases.
If you have questions about your due process rights as a Federal employee, Tully Rinckey’s team of dedicated federal employment attorneys is available to assist. Call (888) 374-4133 or schedule a consultation online.
