MSPB Upholds “At-Will Article II Removals” Despite Conflict with CSRA

In a recent precedential decision, the Merit Systems Protection Board (MSPB) held that two Executive Branch immigration judges were removable at will under the authority of Article II despite the provisions of the Civil Service Reform Act of 1978 (CSRA) that would otherwise make them removable only for cause because they “are inferior officers who exercise significant adjudicative and policymaking authorities on behalf of the United States.”

Appellants were appointed to positions of Assistant Chief Immigration Judge in the Department of Justice’s Executive Office for Immigration Review (EOIR). The appellants conducted proceedings to determine the “inadmissibility or deportability of an alien.” See 8 U.S.C. § 1229a(a)(1). These proceedings determine whether an alien can be admitted to or must be removed from the United States. See 8 U.S.C. § 1229a(a)(3). Appellants’ role was to serve as delegates of the Attorney General in the cases they presided over and their authorities included the power to grant wide-ranging immigration benefits, including asylum.

In February 2025, the Acting Director of EOIR informed the appellants that their employment was terminated effective immediately, without any notice and opportunity to respond, or any reasons for the termination. Both appellants appealed their terminations to the Board and argued that because they qualified as “employee[s]" under 5 U.S.C. § 7511, a section of the CSRA, they were entitled to pretermination procedures under 5 U.S.C. § 7513(b) as well as Board appeal rights. These pretermination procedures entitle employees to notice and an opportunity to respond to a proposed termination. The Agency conversely argued that the CSRA could not be applied to “inferior officers” because such application would interfere with the President’s authority under Article II of the U.S. Constitution. The Agency argued that Article II permits the Attorney General to abrogate otherwise applicable CSRA protections and remove individuals who are “inferior officers” without restriction.

The Office of Personnel Management (OPM) has a statutory right to intervene in Board appeals and notified the Board of its intent to exercise such rights. OPM filed briefs supporting the Agency’s position and stated that without the ability to remove those who were “inferior officers” of the United States, he cannot ensure that the laws are faithfully executed under Article II of the Constitution.

The AJ’s initial decision reversed the appellant’s removal and found their agency tenure qualified them as “employees” under 5 U.S.C. § 7511, and therefore, they were entitled to 5 U.S.C. § 7513 procedures prior to termination. In response to the Agency and OPM’s argument, the AJ held that the Board has long stated “that it lacks the authority” to adjudicate constitutional challenges to a statute like the CSRA. Because of this, the AJ did not address the AJ’s or OPM’s argument. Subsequently, the Agency filed petitions for review of the initial decisions arguing the AJ erred in not considering its defense as an “as-applied” challenge, rather than a facial challenge to the statute, which would not require the Board to overturn a statutory provision but rather to find its application invalid only in these specific circumstances (i.e., application to these two immigration judges, based on their specific duties).

In its decision on appeal from the Administrative Judge’s opinion, the MSPB explained although it lacks authority to determine the constitutionality of a statute writ large (a facial challenge), the Board can adjudicate a constitutional challenge to an agency’s statutory application. In this case, the Board deemed the Agency’s appeal to be an “as-applied” challenge to address because the Agency only argued that the CSRA provisions in question could not be specifically applied to the appellants. Unlike the AJ, the Board agreed with the Agency that this was an as-applied challenge. The Board noted that the government did not argue that 5 U.S.C. § 7513’s removal protections were invalid for all federal employees, but rather that the significance of appellants’ job duties and authorities raised their status to inferior officers, rather than mere employees. The Board reversed the initial decision’s holding.

The Board cited to U.S. v. Perkins, 116 U.S.  483 (1886) to explain how the Supreme Court initially blessed removal restrictions for inferior officers, back in 1886. Since that time, however, that blanket proclamation has been weakened by a series of distinguishing decisions by the Supreme Court. In Myers v. United States, 272 U.S. 52, 176 (1926), the Supreme Court clarified that the removal power of a constitutional officer in the Executive Branch is vested in the President, and cannot depend on Senate approval. More recently, the Supreme Court has ruled that statutory removal restrictions are unconstitutional when the restriction deprives the President of control over the officers in such a way that interferes with his ability to faithfully execute the laws. See Morrison v. Olson, 487 U.S. 654, 685-93 (1988). That rule has since been applied in several Supreme Court cases affecting the federal workforce such as Lucia v. Securities and Exchange Commission, 585 U.S. 237 (2018) and Seila Law, L.L.C. v. Consumer Financial Protection Bureau, 591 U.S. 197, 218 (2020), where the Supreme Court ruled that certain federal employees were inferior officers whose appointments were incompatible with removal restrictions. One of the few exceptions to this trend was United States v. Arthrex, 594 U.S. 1, 26 (2023), where Administrative Patent Judges, despite being declared “inferior officers,” were allowed to keep their administrative appeal rights “provided that all APJ decisions are subject to review by the Director of the U.S. Patent and Trademark Office.” The Board found Arthrex distinguishable because review of immigration judge decisions was “limited and conditional.”

The Agency also argued the Board did not have authority to review the Attorney General’s exercise of Article II authority to remove inferior officers. The Board agreed in this case, but stated that its finding only applied to these appellants and that it would review so-called “at- will Article II removals” on a case by case basis to determine whether appellants were inferior officers and if so, whether they had significant policymaking or administrative authority that made their appointment incompatible with for-cause removal restrictions. If they did not hold such authority, the CSRA’s requirements for notice and an opportunity to respond before termination, coupled with a post-termination evidentiary hearing, could apply.  

Because the Board found that the appellants had significant duties with policymaking and administrative authority, the Board found the removal restrictions of the CSRA to be incompatible with their appointments.

Read the full opinion: Jackler and Jaroch Consolidation v. DOJ