Select agencies are finding success in allowing firings to persist by arguing appeals board judges cannot legally issue rulings.
The Trump administration has begun arguing that administrative judges are ineligible to hear appeals of decisions to fire career federal employees, creating a loophole that could leave civil servants seeking to win back their jobs in an indefinite holding pattern.
In some situations, federal agencies are making the case that judges within the Merit Systems Protection Board were not lawfully appointed and therefore cannot hear federal workers’ appeals. This has in turn led some of these judges to dismiss cases “without prejudice,” stating they must await a ruling from MSPB’s central board on their eligibility to render a decision on the employees’ cases. MSPB has no central board at the moment, however, as the Senate has yet to confirm any nominees to serve on it, leaving employees in a purgatory during which they are off the rolls, not receiving paychecks and have little recourse for restitution.
The administration’s argument stems from the 2018 Supreme Court decision Lucia v. Securities and Exchange Commission, in which the court found SEC administrative law judges are considered “inferior officers” under the Constitution and, as such, are subject to the 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 has never been settled whether Lucia applies to MSPB’s administrative judges. Either way, without a central board, the agency currently has no way to appoint judges in a way that would bring it in compliance with the Supreme Court decision.
James Eisenmann, who served as MSPB’s executive director from 2013 through September 2018 and is now a private attorney at the Alden Law Group, said he has seen the scenario play out in several instances.
“If an agency has been making an argument [that the judge is ineligible to rule], the judge has been dismissing the case without prejudice until there’s some resolution,” Eisenmann said. He added the rulings create an incentive for agencies to make the argument, as it allows their personnel actions to remain in place indefinitely. Few agencies have made the argument so far, however.
In one such case, an MSPB administrative judge dismissed an appeal brought by Padmarao Jevaji, a doctor fired by the Health and Human Services Department. Jevaji said he was improperly dismissed as reprisal for whistleblowing, but HHS was able to put off any decision on the merits of the case. After the department filed a motion questioning the authority of an administrative judge to issue a ruling due to Lucia, Evan Roth, the judge assigned to the case, dismissed it without prejudice. The case would be automatically refiled after the board ruled on a case now pending that seeks to clarify whether MSPB’s judges were lawfully installed.
“In the interest of judicial economy, I find there is good cause to dismiss this appeal without prejudice in order to allow a newly confirmed board to address this issue,” Roth said.
Jevaji has appealed the dismissal to the U.S. Court of Appeals to the Federal Circuit, arguing HHS is asking him to wait until a case unknown to him is decided by a board that may never exist.
“Unlike the board, the Federal Circuit has the practical advantage of existing at more than just a theoretical level, and is therefore in a much better position to issue such a decision before the number of affected cases will continue to spiral out of control,” Jevaji’s attorneys wrote in his appeal.
MSPB has been without a quorum on its central board for more than three years and without any presidentially appointed, Senate-confirmed board members at all since March 2019. While administrative judges can, for now, still issue rulings, there are nearly 3,000 cases pending before the central board. Trump has nominated candidates to fill all three vacancies, but they have yet to receive a vote on the Senate floor. A finding that MSPB’s judges must be appointed, without a board in which to appoint them, could create an opening for thousands of federal employees to seek new hearings before lawfully appointed judges.
Eisenmann said MSPB will likely have to find a way to appoint judges.
“Quite frankly if you apply [Lucia] to MSPB, it seems like it would require the same result,” Eisenmann said.
In the meantime, the Trump administration is arguing before the federal circuit that Jevaji cannot appeal his case because MSPB has yet to issue a final decision. James Solomon, an attorney with Solomon, Maharaj and Kasimati, the law firm representing Jevaji, said HHS and the Justice Department are violating Jevaji’s rights under Cleveland Board of Education v. Loudermill, a landmark Supreme Court case from 1985 that defined public sector employees' due process rights, including that resolution is reached within a “reasonable time.”
With no end in sight to MSPB’s empty board, Solomon said, it is unclear when, if ever, his client will receive a hearing before an administrative judge.
“It’s completely speculative if the triggering event will actually trigger,” he said, adding the administration is looking to drag out certain cases before MSPB as long as possible. “The entire effort here is to kind of punt this as far as possible into the future because they don’t want it decided.”
Pending the results for Jevaji and others in a similar situation, there appears little to prevent agencies from firing employees and, upon appeal, arguing MSPB cannot lawfully determine if the dismissal was justified.
“It’s a problem,” Eisenmann said.