Court Affirms That Federal Employee Appeals Agency's Judges Are Constitutionally Appointed

A federal court has ruled the judges that decide whether federal agencies violated civil service laws when disciplining their employees are properly appointed, staving off a potentially chaotic outcome. 

Elfina McIntosh, a former Defense Department employee, had challenged her firing in 2017 on the ground that she was retaliated against as a whistleblower. In making her case before the Merit Systems Protection Board and subsequently to the U.S. Court of Appeals for the Federal Circuit, McIntosh argued the MSPB administrative judge who heard her initial appeal was unconstitutionally appointed. The decision to uphold her removal should therefore be struck down, McIntosh said. 

McIntosh’s case was one of hundreds that sought to potentially force MSPB to strip authorities from its administrative judges and the Federal Circuit’s ruling against her—which it finalized on Tuesday after refusing a rehearing on the case—avoids what the agency promised would be a difficult and convoluted situation. She had argued MSPB’s judges were either “principal officers” who require presidential appointment and Senate confirmation, or “inferior officers” who must be appointed by an agency head. 

The former Defense civilian brought her case in response to the 2018 Supreme Court decision Lucia v. Securities and Exchange Commission, in which the court found SEC administrative law judges are considered “inferior officers” and, as such, are subject to the Constitution’s Appointments Clause. While President Trump subsequently issued an executive order requiring agencies to appoint ALJs rather than hiring them through the competitive service process, it had never been settled whether Lucia applies to MSPB’s administrative judges.

Complicating the matter was MSPB’s central board going without a quorum for five years starting in 2017, meaning the agency had no option to appoint judges in a way that would bring it in compliance with the Supreme Court decision.

Instead, however, the Federal Circuit ruled that MSPB’s administrative judges are not principal officers as they only issue an initial decision that can be further appealed to the agency’s central board. McIntosh noted such a review only exists if an employee or agency seeks it out, but the court noted that argument was incorrect as the board can intervene in any case when it chooses to do so. The court further found the judges are not principal officers simply because they enjoy “for cause” firing protection.

McIntosh also argued that since the central board was not functional, no reviews were taking place and therefore the judges were effectively acting as principal officers. The court again rejected her claim, noting any employee could still file an appeal and it would be heard once the board regained its quorum. That finally occurred early last year when the Senate confirmed President Biden’s nominees to the board, who are now working their way through an unprecedented backlog. 

The dysfunctional board was “a temporary circumstance, not a structural defect resulting from statutory limitations on board review of administrative judges’ initial decisions,” the court said. 

The court did not formally rule on whether the judges are inferior officers, as McIntosh made that argument too late in the process for consideration. It noted, however, the point is moot going forward, as the reconstituted central board, immediately upon being sworn into office, ratified all of the agency’s existing judges. 

McIntosh dismissed her attorneys late last year and petitioned for a rehearing before the entire Federal Circuit, but the court rejected that request this week. It also denied her appeal for reinstatement on the merits of the case. Her only remaining recourse would be a further appeal to the Supreme Court. When reached for comment, McIntosh declined to comment on her plans.