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Federal Employee Appeals Agency Warns of Chaos if Court Intervenes in Dispute Over Its Judges' Authority

MSPB says it, not the court, should decide if its judges are hired in compliance with the Constitution.

The federal agency tasked with adjudicating appeals of adverse actions agencies have taken against employees is asking a federal court to let the agency's own central board determine whether its judges are hired within the bounds of the Constitution. 

Forcing the Merit Systems Protection Board to reappoint or strip authorities from its administrative judges—as nearly 200 appellants are currently seeking to do—would cause widespread disruptions in the agency’s operations, board officials told the U.S. Court of Appeals for the Federal Circuit on Friday. They submitted their intervenor brief as part of McIntosh v. Defense Department, a key case expected to answer the question of the constitutionality of MSPB’s process for hiring judges. 

Elfina McIntosh brought her case against Defense and MSPB 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” 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. 

Complicating the matter is MSPB’s central board being without a quorum since 2017, meaning the agency currently has no option to appoint judges in a way that would bring it in compliance with the Supreme Court decision.

If the appeals court found MSPB’s judges were subject to the Apportionments Clause, the agency said in its brief, the central board—once it had Senate-confirmed members—would have to come up with a solution. If the court found the judges were “principal officers,” MSPB would have to reduce their authorities. If they were found to be “inferior officers,” the agency would have to appoint new judges or somehow ratify the existing ones. Neither option can occur currently, as both would require a quorum on the board. 

In either scenario, MSPB said all 4,600 cases pending before either MSPB’s administrative judges or its central board would have to await resolution of the appointments issue. The officials called that “tremendously unfair” to the vast majority of individuals who did not raise the issue in their case and noted it would not bring a hastened resolution to McIntosh, who would still have to wait for a confirmed board.   

“In short, petitioner’s requested relief would get her nothing, and only hurt others,” MSPB said, explaining it would be able to address the issue more swiftly if the appellate court allows the agency to rule on the appointments issue first. 

The agency appears closer than it has been in years to finally having board members and operating normally, with all three of President Biden’s nominees cleared by a Senate committee and awaiting a floor vote. Tristan Leavitt, one of those nominees and the current de facto leader of the agency, was a signatory to Friday's brief. 

If the court decides to rule on the underlying appointments issue, MSPB said it should rule against McIntosh and allow MSPB's current judges to remain. In U.S. v. Arthrex, the agency argued, the Supreme Court found U.S. Patent and Trademark Office judges were “officers” as their decisions could not be changed. MSPB judges, meanwhile, are subject to further appeals to the central board and the board can reach down and intervene on any administrative judge decision. The judges’ decisions are only final when the central board permits, the MSPB officials said. McIntosh further suggested MSPB’s lack of a quorum meant an administrative judge’s decision does not currently have oversight, but the agency rebutted that in a recent case, Rodriguez v. Veterans Affairs Department, the court ruled that the hampered nature of the agency was only temporary and not constitutionally relevant to judges’ appointment status. 

The court is expected to issue a decision on the case in the coming months.