4th Cir.: Civil Service Reform Act May Have "Been So Undermined" That District Courts Should Take Over Federal Employee Lawsuits

"Because Congress intended for the Civil Service Reform Act to strip district courts of jurisdiction only if federal employees were otherwise able to receive adequate and independent review of their claims, we vacate and remand to the district court to consider whether the text, structure, and purpose of the Civil Service Reform Act has been so undermined that the jurisdiction stripping scheme no longer controls"

An excerpt from today's long Fourth Circuit decision in Nat'l Ass'n of Immig. Judges v. Owen (Judge Nicole Berner, joined by Judges Pamela Harris and Toby Heytens):

The National Association of Immigration Judges brought this [First Amendment] challenge to an employee policy that requires immigration judges to obtain permission before speaking publicly on issues relating to immigration…. The district court dismissed the case …, concluding that the policy could only be challenged through the administrative procedures established by the Civil Service Reform Act…. When a federal employee seeks relief from an action covered by the Civil Service Reform Act, she is required to comply with the prescribed scheme of administrative and judicial review and may not generally bring an initial claim in federal court. Constitutional challenges and pre-enforcement challenges are no exception.

When the Civil Service Reform Act functions as designed, we agree with the district court that the National Association of Immigration Judges would be required to bring its case through its administrative scheme.

It is not clear, however, that the Civil Service Reform Act is currently so functioning. The Civil Service Reform Act requires a strong and independent Merit Systems Protections Board and Special Counsel. That foundational principle, that functioning and independent bodies would receive, review, and decide in the first instance challenges to adverse personnel actions affecting covered federal employees, has recently been called into question. Because Congress intended for the Civil Service Reform Act to strip district courts of jurisdiction only if federal employees were otherwise able to receive adequate and independent review of their claims, we vacate and remand to the district court to consider whether the text, structure, and purpose of the Civil Service Reform Act has been so undermined that the jurisdiction stripping scheme no longer controls….

We must answer a single question: Does the CSRA strip the district court of jurisdiction over NAIJ's pre-enforcement challenge to the Speech Policy? If so, NAIJ's members must pursue their claims through the scheme outlined in the CSRA…. [Under] Thunder Basin Coal Co. v. Reich (1994), … we look to the statute's language, structure, and purpose to assess whether Congress intended to funnel covered federal employees' claims through the CSRA's administrative scheme, stripping district courts of jurisdiction.

We conclude that this step requires further examination by the district court. The CSRA's adjudicatory scheme was predicated on the existence of a functioning and independent MSPB and Special Counsel. We take notice that the function of the MSPB and Special Counsel, contrary to the CSRA's text and purpose, has recently been called into question. The district court must address this issue in the first instance….

The Supreme Court has recognized that the CSRA, when functioning as Congress intended, was designed to strip district courts of jurisdiction…. Those cases would have, until recently, made our analysis at step one of the Thunder Basin test simple. It has been well-established that Congress's intent for the CSRA to preclude district court jurisdiction is "fairly discernible in the statutory scheme." That conclusion can only be true, however, when the statute functions as Congress intended. During the pendency of this case, whether the CSRA functions as Congress intended has been called into question.

To maintain Congress' intent, the MSPB and Special Counsel must function such that they fulfill their roles prescribed by the CSRA…. [But] during the pendency of this case, the President removed the Special Counsel, and two members of the MSPB such that it currently lacks a quorum. These removals and the lack of quorum in the MSPB raise serious questions as to whether the CSRA's adjudicatory scheme continues to function as intended. Such a question, which turns on a factual record, is best addressed by the district court in the first instance. We therefore remand to the district court to assess the functionality of the CSRA's adjudicatory scheme.

In addition to providing a functioning adjudicatory process, the CSRA was designed to protect the independence of the agencies reviewing federal employees' claims…. The MSPB was hailed as "the Cornerstone of Civil Service Reform." In order to carry out its role of preserving the merit system for all federal employees, Congress recognized that the MSPB must be "insulated from the kind of political pressures that [had] led to violations of merit principles in the past." Congress explained that "absent such a mandate for independence for the merit board, it is unlikely that [it] would have granted the Office of Personnel Management the power it has or the latitude to delegate personnel authority to the agencies."

The CSRA established the same independence for the Special Counsel, who it tasked to "investigate and prosecute political abuses and merit system violations," and "safeguard the rights" of employees who "'blow the whistle' on violations of laws." …

Congress left little doubt about the importance of an independent MSPB and Special Counsel free from "any control or direction by the President." The MSPB and the Special Counsel "exercise statutory responsibilities independent of any Presidential directives." For this reason, the CSRA mandates that the members of the MSPB and the Special Counsel can be removed by the President "only for inefficiency, neglect of duty, or malfeasance in office." …

Put simply, Congress enacted the CSRA on the bedrock principle that the members of the MSPB and the Special Counsel would be protected from removal on political grounds, providing them independence from the President…. [But] in lawsuits challenging the removals of the Special Counsel and members of the MSPB, the Government has argued that the removal protections enshrined in the CSRA are violations of separation of powers, thereby calling into question the constitutionality of a critical aspect of the CSRA, and the continued vitality of the statute's adjudicatory scheme. This issue has yet to be resolved, however. At present, reinstatement of the MSPB Board members has been stayed by the Supreme Court. Trump v. Wilcox (2025).

The resolution of this issue could also call into question whether the CSRA continues to function as Congress intended for purposes of the Thunder Basin analysis. As described above, Congress may well have intended the CSRA to strip district courts of jurisdiction only because it understood that the President could not exercise unfettered control over the Special Counsel and MSPB. If that understanding proves to be incorrect, then a reevaluation of Congress's intent under Thunder Basin may be required. We leave that issue, should it arise, to the district court to address in the first instance.

At the time the district court considered its jurisdiction over this matter, the functionality and independence of the MSPB and Special Counsel had not been called into question. This is no longer necessarily true…. Accordingly, we remand to the district court to conduct a factual inquiry whether the CSRA continues to provide a functional adjudicatory scheme….

Comments

[Lee Moore]

This is what happens when you clutch at straws and grab a doobie instead.

[Stephen Lathrop]

Another case to show that MAGA doctrine demands, paradoxically, that an all-powerful president is required by the notion of separation of powers. That doctrine is mistaken.

If Congress decrees it, separation of powers is valorized when a president appoints a candidate to an office in either the legislative or judicial branch, or to an office which is independent of all three branches, which sometimes happens. The case of the Federal Reserve is an example.

It remains true that American constitutionalism divides government power among three branches. It has never been true that government power was meant to exhaust to the point of exclusion every other power decreed or implicated by American constitutionalism.

For instance, the jointly sovereign People unquestionably retain the supreme and uncontrollable power in American governance. It is a power which no one in government enjoys a proper power to appeal. Thus, if the properly empowered Congress defines by valid legislation an agency outside the control of any of the three branches of government, that is neither invalid nor incongruous. It is instead a proper manifestation of that jointly sovereign power held by the People themselves.

[Krayt]

The People put governing limits on themselves as well, by the Constitution. The force their popular will to be filtered through an amendment process because the Founding Fathers knew, to put it in modern terms, the one true superpower that exists was demagogues’ gift of gab, to easily and transiently sway the winds of political passion.

In short, “never let an emergency go to waste” is a problem, not a wonderful feature to look on glowingly.

You speak of the ultimate sovereignity of The People, as if it’s just another rationalization for those hot air specialists to wield, to increase their power, at their whim.

The People were on to you, over 250 years ago now. There is no proud virtue signal in your words, spoken tremulously with feigned valor.

[Stephen Lathrop]

Must I really do this again? Okay, for the guy I hope is the last to need correcting, here it is again, verbatim from founder James Wilson:

There necessarily exists, in every government, a power from which there is no appeal, and which, for that reason, may be termed supreme, absolute, and uncontrollable . . . Perhaps some politician, who has not considered with sufficient accuracy our political systems, would answer that, in our governments, the supreme power was vested in the constitutions . . . This opinion approaches a step nearer to the truth, but does not reach it. The truth is, that in our governments, the supreme, absolute, and uncontrollable power remains in the people. As our constitutions are superior to our legislatures, so the people are superior to our constitutions. Indeed the superiority, in this last instance, is much greater; for the people possess over our constitution, control in act, as well as right. The consequence is, the people may change constitutions whenever and however they please. This is a right of which no positive institution can ever deprive them.

Note that when Wilson used the term, “positive institution,” it was the Constitution he referred to.

Who was Wilson? Why should anyone care what he said? Here is an explanation:

“Not only that, but according to a contemporary account, at 6:00 p.m. on Wednesday, December 15, 1790, founding father, professor and Supreme Court Justice James Wilson, at Philadelphia: ”

. . .presented an introductory lecture to President Washington, Vice President Adams, and Congress. Also in attendance were Martha Washington, the Governor and Legislature of Pennsylvania, and “a great number of ladies and gentlemen…composing a most brilliant and respectable audience.

Got it? Wilson was the founder most respected by the others as an authority on the theoretical basis of government embodied in American constitutionalism.

For what it’s worth (it’s worth a lot) Wilson was one of only 6 founders to sign both the Declaration of Independence, and the Constitution. He had a right to claim at least partial pride of authorship in both documents. In 1774, Wilson published a pamphlet which foreshadowed with less eloquence exactly the ideas Jefferson later famously penned into the Preamble of the Declaration. Later, as a member of the Committee of Detail, it was Wilson’s judgment which summarized the discursive debates at the Constitutional Convention, and Wilson’s hand which actually wrote the most influential draft the Convention relied upon.

Krayt — I look forward to any substantive rejoinder you have on the subject of Wilson and American constitutionalism. If you can think of one, you will be the first to take on the task, despite the many instances when I have posted, and reposted, that Wilson quote above.

The historical fact is that American constitutionalism at the time of the founding was notably different than today’s commonplace beliefs about it. That has created a lot of difficulty with judicial interpretations, and not least with notions of textualism. The Constitution remains structured as the founders left it to us. By contrast, modern ideas—especially among judges, lawyers, and you—tend toward assertions that the government itself is sovereign. To Wilson, the founder who best understood American constitutional theory, that is all wrong, as he said explicitly in the quote above.

Let me know what you think.

[Noscitur a sociis]

Got it? Wilson was the founder most respected by the others as an authority on the theoretical basis of government embodied in American constitutionalism.

Do you think that anything you’ve quoted or cited supports this claim?

[Stephen Lathrop]

Yes. Plus other stuff I have not cited.

Yes, I think commanding an audience including the President, Vice President, and many or most of the Congress, all sitting together for a lecture on Constitutionalism, during the first American session of Congress, is an unmatched accomplishment, indicating theory-of-government influence; no other such occurrence is recorded. Also, if Thomas Jefferson is using your stuff to structure arguably the most famous utterance of American governing principle, I think that supports a claim of far-reaching influence. Do you think otherwise?

For your own satisfaction, get some advice from academic historical experts on the Constitutional Convention. ind out which histories are regarded now as the best accounts. Check the indexes. There you will discover that without particularly intending it, Wilson’s entries tend to be more numerous, and on more trenchant subjects, than those of other better known figures. By a simple count, Wilson was the delegate to the Convention who spoke second most often.

By the way, do you understand the historical importance of the Committee of Detail? It consisted of 5 delegates. Near the completion of their work, the entire rest of the Convention adjourned for approximately 10 days, to await the report of the Committee of Detail.

In addition to that, Wilson is generally regarded by historians as the most influential figure in the drafting of the 2nd Pennsylvania State Constitution, and as the first American law professor.

I am not now attempting a biography of Wilson. There is more to be said about his upbringing in Scotland, his education in the Scottish Enlightenment, the historically interesting circumstances of his immigration to America, the decline of his reputation in history, and perhaps about why his ambition to be the first Chief Justice of the Supreme Court was turned aside by Washington.

Among the better-known American founders, only Wilson was born in the British Isles, although other lesser knowns were too. Hamilton, born in the Caribbean, was the only other highly influential founder not born in America.

Wilson indulged in western land speculations, fared poorly, and found himself in debtors prison while still a Justice of the Supreme Court. He died more or less in disgrace shortly thereafter.

[Kazinski]

“For instance, the jointly sovereign People unquestionably retain the supreme and uncontrollable power in American governance.”

I question it.

After all the at the time the constitution was promulgated, voters in many states were required to own property, there was no direct elections for President or Senators, no initiative or proposition.

Now of course there is always the 2nd amendment option to assert that “unquestioned” people power but government authorities might certainly try to control it.

[Stephen Lathrop]

Kazinski — Take a look at my response to Krayt, directly above. I extend the same challenge to you that I extended to Krayt. What can you say to substantively rebut Wilson’s quote, which I put in italics?

[Kazinski]

Well that’s nice Lathrop, but when was it ratified by the states?

The Declaration of Independence has a similar sentiment:
“-That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
At least that was adopted by the Continental Congress.

Great, but irrelevant in this discussion.

[Stephen Lathrop]

Kazinski — Well, unless you mistakenly reject the notion that Wilson was a principal author of the Constitution, that statement I quoted by him was his interpretation of what the states ratified. If you wish to critique that notion, the historical problem you face is to identify any other alternative source with better claim to contemporaneous authority. Good luck.

That quote you cite from the Declaration, by the way, was lifted from . . . Wilson. But improved in eloquence by Jefferson. Here is Wilson’s text from a 1774 pamphlet. Compare:

All men are, by nature, equal and free: no one has a right to any authority over another without his consent: all lawful government is founded on the consent of those who are subject to it: such consent was given with a view to ensure and to increase the happiness of the governed, above what they could enjoy in an independent and unconnected state of nature. The consequence is, that the happiness of the society is the first law of every government.

In fairness to Jefferson, he freely said later in life that he did not claim personal credit for the ideas in the Declaration. He said he borrowed them from others whose views were widely respected at the time. In this instance, pretty obviously meaning Wilson.

[Kazinski]

Ok, I’ll bite, what specific provision of the Constitution is Wilson interpreting?

I can point to Article 2 Section 1 for the proposition that The Executive power shall be vested in a President of the United States. Likewise for the Legislative and Judicial powers.

Is there a secret Article 8 vesting the Grand Jury power in the Sovereign People.

Wilson’s view of the Constitution is interesting but it’s nothing more than historical background unless there is a.provision where the plain meaning provides the textual basis for the claim.

[Stephen Lathrop]

Ok, I’ll bite, what specific provision of the Constitution is Wilson interpreting? . . . .

Is there a secret Article 8 vesting the Grand Jury power in the Sovereign People.

Wilson’s view of the Constitution is interesting but it’s nothing more than historical background unless there is a.provision where the plain meaning provides the textual basis for the claim.

Kazinski —That is nothing more than ipse dixit contradiction of Wilson. Wilson is pointedly not relying on the Constitution. Just the opposite. Wilson is denigrating the error to think the Constitution is all there is to American constitutionalism. Re-read the quote.

Wilson, but not you, wielded power to do that. That power was legitimated by acceptance among other Convention delegates, who signed their names to it. Wilson says in so many words there remains at all times power in the People to govern at pleasure. Wilson says in so many words that it is a mistake to think otherwise. Wilson is the guy whose hand drafted the most influential document to come out of the Constitutional Convention, upon which the final text is closely based. Wilson is the guy who began the text of the Constitution with this three word proof of the power he asserted, “We The People . . .”

That is the specific Constitutional text you demanded. That is the text Wilson was expounding. He even said that too—in another famous utterance you are free to look up—to explain why those are the three most important words in the Constitution, and worth all the rest of it put together.

Some guy on the internet, hiding behind a pseudonym, says, “No! No!, It cannot be!”

Who should we believe?

President Washington, and the first Congress, flocked to hear Wilson. Nobody even knows who you are. And that is by your own cowardly choice.

As for your jibe at federal grand jury power, it is of a piece with your other mistake—just as mistaken, just as foolish, just as unfounded on any source but your own imaginings. But in that case, it is also contradicted outright by legal orthodoxy, and by text in a federal manual presented to this day by the government to newly appointed grand jurors on commencement of their service.

Kazinsky, you are the poster child for, “Area Man.” The guy fanatically loyal to the Constitution as he imagines it. If that remains the way you want it, no one can stop you. But keep thinking that way, and you will never know where your thoughts come from.

[Stephen Lathrop]

Kazinski — One more point. All your struggles with history could be ended, if not for your needless insistence that you expound historical truth.

There is an accurate historical case to be made that Wilson’s view of American constitutionalism slid gradually into eclipse over subsequent decades, with that eclipse reaching near-totality by the beginning of the 20th century. Advocates who prefer that decapitated view of American constitutionalism—without a continuously active popular sovereign at its head—trip themselves up needlessly.

They do not have to stubbornly assert a history of which they are ignorant, and care nothing about, is somehow useful to validate their own present-minded policies and doctrines. You ought to take notice of that possibility, and convert your own advocacy to a forthright claim to stand on ground equivalent to any occupied by the founders themselves. With the powers and liberties they (especially Wilson) said were your natural endowment, you could make arguments you prefer and not look ignorant in the process.

[Rossami]

That’s an easy quote to rebut though it’s not really a rebuttal of the quote but of your rather selective interpretation of it.

Yes, the people are ultimately sovereign. Yes, they can change the constitution. And the Founders knew that one way to do so was armed rebellion – a path that requires broad consensus among the people that the change is worth the sacrifice. Those same Founders set up another slightly less painful way to amend the Constitution. That process is intentionally set up to require an equally broad and persistent consensus about the value of the change because they were deeply worried about the risk of demagoguery and transient passions.

The Founders incorporated multiple controls into our system of government to limit that risk of demagoguery. Your comments demonstrate a desire to wash away all those controls. That tells me you’re either in denial about the dangers of demagoguery or that you believe that there is a transient balance in favor of your preferred policies that you think can be somehow locked in and not be similarly overturned the next time the winds shift.

I say all that because if you truly believed there was a broad and persistent weight of opinion in favor of your preferred policies, you’d simply be pushing to use the existing processes instead of trying to blow the whole system up.

[Stephen Lathrop]

Rossami — Want to rebut me? Cite Wilson’s text, and show where he means something other than what I said he means.

[David Nieporent]

What can you say to substantively rebut Wilson’s quote, which I put in italics?

I can say that you substantively misunderstand his point. Even if you put it in italics.

Wilson was making a philosophical point about the nature of government, not a legal point about the actual constitution or laws. You’re making the same mistake that neoconfederates make when they try to justify the southern treason as legal, by reference to the Declaration of Independence. Rebellion is always illegal, and obviously so; no govt is ever going to say, “Sure, go ahead and violently oppose us.” Revolution is not illegal; it is extralegal. It is the appeal to a higher law (“the Laws of Nature and of Nature’s God,” one might phrase it) to say that the existing govt is no longer legitimate and can be discarded and replaced.

You are misinterpreting Wilson’s quote to conceptualize some sort of hybrid in which people can ignore the law without discarding or replacing it. Not so. The Constitution can be abrogated, in the same way that the British crown was or in that the Articles of Confederation were. But unless and until it is abrogated, it is binding, and nobody — including this abstract “sovereign people” you always refer to — is free to ignore it.

[Brett Bellmore]

Personally, I always justify secession as legal based on the 10th amendment. A legal action taken in the most despicable cause imaginable, of course, but as a power neither granted the federal government nor prohibited to the states, it’s obviously reserved for the states or people.

[Stephen Lathrop]

Nieporent — You are smart enough to get this, but so committed to present-minded presumption that you cannot read founding era history in contemporaneous context.

Then, but not now, the notion of sovereignty was the most salient question in political theory, and had been in England since the early 17th century. It was an era of controversies, rebellions, a regicide, and wars, fought back and forth to resolve a question which seemed too tangled ever to get straight.

Thus, there was nothing peculiar about focusing on sovereignty—nothing about the subject had been treated as a given for more than 150 years. Then came the American revolution, and with it a seeming category-killer resolution to the sovereignty problem: instead of a separate sovereign to rule the people as subjects, make the subjects collectively sovereign over themselves. That would for the first time assure an identity of interests between the sovereign and the subjects.

At a stroke, the goad of the illegitimate separate sovereign disappeared altogether. And along with that disappearance went the notion of a legitimate popular uprising by the subjects—the subjects would be logically incapable to overthrow themselves, and presumptively unmotivated to want to try. They were the masters of their own government already. They could not reasonably hope to replace themselves, with themselves.

Thus, all a would-be revolutionary could hope to accomplish, was to replace a legitimate sovereign with an illegitimate one. Hence the bifurcated definition of treason in the Constitution, with one branch to punish support of a foreign enemy, but the other reserved to punish the domestically initiated crime, “to levy war” against the United States. Note, not the government. The United States, of which the jointly sovereign people were the legitimate embodiment.

What jointly sovereign Americans could do, and insisted upon, was to control government at pleasure. Thus, if government got out of line, there would be no need of rebellion to put things right. Mere corrective exercise of sovereign power would do. Because on their theory, to correct government as needed was an unlimited power and prerogative they shared alike with every other sovereign in the world.

Thus, America was alike with the others, except that in America, uniquely, newly-established identity of interest between sovereign and subjects legitimized whatever the sovereign chose to do. That identity of interest was the entire mechanism of legitimate sovereign constraint posited by the founders, and they judged it sufficient. It was government alone which needed constraint by sovereign decree, which is to say, by the Constitution. In short, the jointly sovereign people are over the Constitution, and the Constitution constrains government (see Wilson).

Thus, the question premised began with the notion that ungovernable, unappealable power was continuous and inevitable in every system of government (again, see Wilson), and went on to ask how to make that inherently threatening circumstance benign. Joint popular sovereignty became America’s answer. Wilson had been instrumental in making that happen.

You insist that I argue in favor of both arbitrary rule, and rebellion. I have been trying to explain to you and others that James Wilson, and a great many other founders, thought they had made principled rebellion an impossibility. It followed that whatever rebellion might happen would be unprincipled, illegitimate, and likely futile. Hence, rightly resisted and corrected either with punishments, or instead in many cases with education. Note Jefferson’s famous Tree of Liberty remark.

You write, regarding the Constitution:

“But unless and until it is abrogated, it is binding, and nobody — including this abstract “sovereign people” you always refer to — is free to ignore it.”

For pity’s sake, what do you think this by Wilson means:

“The consequence is, the people may change constitutions whenever and however they please. This is a right of which no positive institution can ever deprive them.”

You are a lawyer. What do you think, “positive institution,” means in legal context. This is what I find, “Positive law includes constitutions, statutes, and regulations.”

What do you think, “whenever and however they please,” denotes, except that the people can do something at pleasure? I do not know what you think, “at pleasure,” means now. I do know that in 18th century sovereignty debates, “at pleasure,” meant no constraints at all. None.

“Whenever and however,” were thus legitimate corollaries of, “no constraints.” That was the founders’ system of U.S. government as they imagined it—a joint popular sovereign wielding unconstrained power over the Constitution, and a Constitution over government, empowering it and constraining it according to sovereign will.

Because you find the past stranger than you prefer, you try to bend the historical record to conform to present-minded presumptions—which in fairness to you, are nearly universally held by educated people today. That tells you nothing reliable about a former era during which your present-day contextual premises were never imagined. But in further fairness to you, I must concede that views of your sort must have circulated in the founding era. What else to make of this from Wilson?:

Perhaps some politician, who has not considered with sufficient accuracy our political systems, would answer that, in our governments, the supreme power was vested in the constitutions . . . This opinion approaches a step nearer to the truth, but does not reach it. The truth is, that in our governments, the supreme, absolute, and uncontrollable power remains in the people.

See that word, “remains?” Wilson put it there to correct your argument about supreme power delegated to the Constitution itself, or to the government.

[David Nieporent]

I mean, I literally addressed these points. And given how bad you are at interpreting what I’m saying, your pretense to the notion that it’s hard for people to understand what they were thinking because it was a few centuries ago — but that you alone actually do — is laughable.

The “Joint Sovereign People” is a philosophical abstraction. Your mistake is in confusing philosophical musings — hey, there was no YouTube back then, so they had to do something to occupy their time — with constructing and running a country in the real world. Which was run by a government, not by “the sovereign people.” They were a lot smarter and more practical than you give them credit for.

Again: Wilson’s point was that a constitution could be changed — or even abolished — at any time. It was not handed down by god, but adopted by people. But it could not just be ignored at whim. (Let alone the whim of some imaginary construct called “joint sovereign people.”)

[Stephen Lathrop]

Nieporent — You are fighting a losing battle against the historical record. Maybe you ought to concede history, but call Wilson a historical crank. You will be at odds with the founders if you do. But your advantage would be that you put yourself in plentiful company among similarly-motivated lawyers and judges.

As you can see, there are plenty of commenters here who call me a crank, because they do not want to take on Wilson’s arguments as quoted. Check it out. Look for any citations to Wilson’ text; not much there to show the commenters are serious.

[Both Sides]

I was wondering if a court was going to question the administration’s strategy of violating the law, intentionally making inoperable the agency designed to enforce the law being violated, and then arguing courts nonetheless lack jurisdiction because the claims must be taken before the agency the administration intentionally made incapable of hearing such claims.

[Glaucomatose]

I’d always assumed that the proper remedy there was simply to appeal to the district court either the finding of the MSPB or its refusal/failure to respond in a timely fashion, as either would amount to an exhaustion of remedies through the administrative process. The idea of short-circuiting that process as fundamentally flawed is interesting, and certainly seems like the right result from an equitable perspective, but I don’t know how much of a legal basis there is for that sort of step.

[mulched]

There is none, as you can see from the decision in the OP. It’s just Trumplaw.

[Glaucomatose]

Trumplaw is what comes from Trumpfacts.

[Kazinski]

More Trump rules.

I could see that a federal court might decide to strike the entire law when removal protections of a statute are stricken.

However in Selia law the Supreme Court decided that striking those removal protections did not provide a rational to strike the whole law and end the agency, hard to see any substantial difference in that rationale here.

Seems to me it would be up to Congress to decide whether to revise the statute, not federal courts to decide to void Congress’ judgment when the strip jurisdiction, not on constitutional grounds but they think they will do a better job than the means Congress has selected.

[MollyGodiva]

Why is it’s Congresses responsibility to re-write law that Trump is sabotaging?

[Kazinski]

Well the courts have seemed to decide that Congress can’t shield executive branch departments from control by the executive. So Congress wrote a law that unconstitutionally impinges on executive authority.

So the courts wheter to strike the law entirely or just strike the offending section and let it continue to operate.

What shouldn’t be an option is the courts wite their own law.

[Sarcastr0]

Maybe the Court will make every civil service employee not only at-will but unreviewably so.

But that isn’t the issue in this case.

[Lee Moore]

What would reviewable “at will” employment mean ?

Who is reviewing what ?

[Sarcastr0]

You can’t fire at will employees for their race, or other protected classes. Nor for retaliation.

[Sarcastr0]

Trump brings different facts.

This is about the Thunder Basin test for whether courts’ jurisdiction can be stripped without a due process issue.

Among the factors are ‘whether the claim enjoys meaningful review under the statute.’

Do you believe that federal employment claims are getting meaningful review?

[Kazinski]

Due process for what? A job?

“nor be deprived of life, liberty, or property, without due process of law”

Congress has never provided a property interest in a civil service job, that’s one reason they stripped the courts of jurisdiction.

[Both Sides]

The Supreme Court has repeatedly held that just-cause discharge protections are a property interest that the Due Process clause protects. Congress passed the current statute giving just cause protections to many federal employees after the first of those cases.

So, it’s unambiguously been the law for quite some time now that many federal employees have Due Process rights in discharge cases. Of course the Supreme Court could hold that civil service style just cause requirements for lower-mid level federal employees are unconstitutional. It could even reverse its cases holding that just cause discharge protections are property interests. But unless and until that happens, your statement is incorrect.

[y81]

This decision points up a problem with the idea of overruling Humphrey’s Executor. A whole raft of statutes have been enacted creating boards with powers which Congress would never have delegated if they had known that all the members of the board serve at the pleasure of the president. If Humphrey’s Executor is overruled, it will take years (and a level of intelligence and good will currently lacking in Washington) to sort out the mess.

[Stupid Government Tricks]

It’s just precedent. They’ve changed precedent before. The Rule of Law has been exposed as a fraud before. What harm can happen from doing it again and again?

[Sarcastr0]

The Rule of Law has been exposed as a fraud before.

Only to you, the only man in the world smart enough.

Well, you and the Free Man on the Land people.

[Stupid Government Tricks]

Citation missing.

[Sarcastr0]

You said “The Rule of Law has been exposed as a fraud before.”

I don’t need a citation to point out that’s not facts but ideology, and a pretty fringy one at that.

[Rossami]

When you build a house on a foundation of sand, eventually you have to acknowledge the mistake, tear down the house and rebuild on a firmer foundation.

Yes, it will require a lot of work by Congress to unwind and fix all their mistakes. The best time to have started that work was years ago. The next-best time to start is now. The worst choice would be to keep compounding the problem.

[Lee Moore]

If you keep piling sand on sand and wait long enough it eventually becomes sandstone.

Though your house will have crumbled to dust and become incorporated in the sandstone in the meantime.

[Stupid Government Tricks]

This points up the core fallacy, the original sin so to speak, of pretending that government bureaucrats deserve job security and cannot be fired at will. It also points out the lunacy of tacking unionism onto the civil service, and pretending that politicians and their co-conspirators in looting the treasury can actually “negotiate” fair employment contracts.

May the whole house of cards fall down!

[Glaucomatose]

Yeah, I really miss the spoils system. We need more campaign volunteers and donors’ kids overseeing billion-dollar programs, and fewer professional project managers and trained engineers!

[Brett Bellmore]

Yes, it’s much better for the bureaucracy to be full time for one particular party, than it is for them to switch back and forth as elections dictate. [/sarc]

[Sarcastr0]

It’s not.

I work with MAGA and libertarians as well as liberals. We all get along fine because our work isn’t partisan.

Statistics show plenty of civil servants don’t donate to a party.

You just live in a world where there is no professionalism or integrity or being apolitical.

The real world has lots of normal people who are not partisan tools.

[John F. Carr]

This case started out as a challenge to a Biden administration policy. The appeal was argued last December and the employees would have lost. This year the Fourth Circuit took judicial notice that Trump changed everything.

[Dr. Ed 2]

I was wondering why the judges would want to criticize immigration policy — Biden explains it.

[Dr. Ed 2]

So even when congress removes jurisdiction, courts take it back…

[Frank Drackman]

Only 1,326 days until start of “45/47″‘s 3rd term

[Allutz]

And we see firstly why civil service protections are incompatible with our constitution, and secondly why courts should never have come up with the severability doctrine.

[Sarcastr0]

We’ve had civil service protections since 1883
https://en.wikipedia.org/wiki/Pendleton_Civil_Service_Reform_Act

“The Pendleton Civil Service Reform Act provided for the selection of some government employees by competitive exams, rather than ties to politicians or political affiliation. It also made it illegal to fire or demote these government officials for political reasons and created the United States Civil Service Commission to enforce the merit system. ”

We’ve done pretty great for operating without a Constitution for so long.

[ReaderY]

I think this is a reasonable statutory interpretation. Congress stripped federal courts of jurisdiction conditional on the existence of an alteranative review scheme with certain mandated properties. If this review scheme does not exist, the jurisdiction-stripping dissappears.

Opponents of the Administrative State have generally argued that courts and not administrative agencies should decide disputes. This decision gives them there wish.

Moreover, the Due Process Clause requires disputes to be decided by an independent, neutral tribunal. If members of Article I courts can be removed by the President at pleasure by virtue of these courts being housed in the Executive Branch, it follows that they cannot constitutionally adjudicate disputes.

The unitary executive doctrine, interpreted as giving the President power to fire ANY executive branch member at will, would appear to inevitably lead to the abolition of Article II tribunals. Perhaps they can be folded into the Judiciary by making them specialized Article III courts with special, expedited procedures but nonetheless possessing life tenure and other core elements of Article III courts.

[Brett Bellmore]

“I think this is a reasonable statutory interpretation. Congress stripped federal courts of jurisdiction conditional on the existence of an alternative review scheme with certain mandated properties.”

Here’s the problem. Congress certainly stripped federal courts of jurisdiction, providing for an alternative review scheme with certain mandated properties. But the judge identifies no language making the stripping conditional on all of those mandated properties.

Congress certainly could have included a non-severability clause, restoring court jurisdiction in the event any part of the alternative review scheme wasn’t upheld. But they didn’t. (At least I’m assuming they didn’t, because if they had, the judge would have brought it up, the whole statutory scheme having gone “poof” as a result of some part of it being overturned by the Court.)

There’s a pretty fundamental difference, I should think, between on the one hand an agency not being able to act because the President has fired its staff, and on the other hand, an agency perhaps acting differently because it’s staff is subject to firing by the President.

To the extent the judge relies on the former theory, the MSPB lacking a quorum, she has a point.

OTOH, when she starts in on the “independence” fork of the argument, she’s on weaker ground, because she’s appealing to an independence the Supreme court declared unconstitutional, and the statute at hand didn’t have a non-severability clause.

So the statutory scheme, post review, now lacks that demand for independence.

I guess to sum up, the judge seems to be engaged in Congressional mind reading rather than Congressional statute reading.

[Sarcastr0]

the judge identifies no language making the stripping conditional on all of those mandated properties.

The alternate review must be meaningful for the jurisdiction stripping to be legitimate. That is well-worn precedent, not some wild-eyed judicial activism.

[Brett Bellmore]

The question is, does the people doing the review being subject to Presidential firing really make the review not meaningful? It would still be happening.

She’s on much, much stronger grounds on the lack of a quorum.

[Sarcastr0]

That is not the question.

“To maintain Congress’ intent, the MSPB and Special Counsel must function such that they fulfill their roles prescribed by the CSRA…. [But] during the pendency of this case, the President removed the Special Counsel, and two members of the MSPB such that it currently lacks a quorum. These removals and the lack of quorum in the MSPB raise serious questions as to whether the CSRA’s adjudicatory scheme continues to function as intended. Such a question, which turns on a factual record, is best addressed by the district court in the first instance. We therefore remand to the district court to assess the functionality of the CSRA’s adjudicatory scheme.”

[Both Sides]

I realize that any claim that Brett and Sarcastro are more-or-less saying the same thing is overwhelmingly likely to be mistaken. But, just in the last two posts, aren’t you two more-or-less saying the same thing? Specifically, that there is a real at least potential problem with Trump causing a lack of a quorum on the MSPB (and relatedly, the absence of a special counsel) such that it can’t perform the role the statute envisions?

To be clear, I’m not saying Brett thinks that’s necessarily enough to conference court jurisdiction, and I’m not saying Sarcastro agrees that this is the only problem. But am I right that you both think this is the meat of the potential problem? Or am I trying too hard to live up to my username?

[Brett Bellmore]

I’d say that my position is that the lack of a quorum is indeed a serious issue that may effectively void the jurisdiction stripping, but I’d deny that the Court deciding that the President can fire the Special Counsel and MSPB has any legal bearing on “the functionality of the CSRA’s adjudicatory scheme.”

[Both Sides]

That is how I understood you. And FWIW, I think that’s a very defensible position. Which I also think is not *that* different from what Sarcastro was saying.

Now of course the precise extent that you two agree has no legal significance. But I would tend to think that any legal/political point that you two actually did agree on would likely be the correct position.

[ReaderY]

I think your argument runs against two core canons of judicial construction.

The first is that statutes are not construed to strip federal courts of jurisdiction unless Congress clearly says so. So I think that tips the severability question in favor of non-severability. Congress stripped the courts of jurisdiction, but the statute requires certain conditions to be met. One of those conditions was that relevant officers in the administrative tribunal cannot be removed by the President at will. In the absence of this condition, it is by no means clear that Congress would have stripped federal courts of jurisdiction.

The question here is not whether the administrative review is “meaningful” or not. The question is whether it is the specific administrative review Congress specified as the substitute for the courts. If it is not, then there is an ambiguity as to whether Congress would have stripped the courts of jurisdiction anyway. And the presence of ambiguity defeats jurisdiction stripping.

The second is constitutional question avoidance. I think there is a serious constitutional question whether officers who serve at the President’s pleasure can provide a fair hearing in a claim against the government, which is, under the Vesting Clause argument, always in some sense a claim against the President. The question again is not whether the hearing is “meaningful.” The question is whether it satisfies Due Process.

My view has always been that while the Due Process Clause should not be lightly expanded to cover whatever “substance” rights a majority of the Court personally think are important, nonetheless core “process” rights, like the requirement of a hearing before a truly neutral and independent tribunal, should not be interpreted in a cramped fashion, and courts are legitimately entitled to err on the side of interpreting them more expansively.

[Ghost of Patrick Henry]

This is pure question begging to the extreme. What is the source of the legal standard to be applied, as Congress established one, but did do in the CSRA? More tyranny by lawyers in robes, an outrage against the Constitution. The People ELECTED the President. Nobody elected these judges. Congress is elected and has spoken clearly. Ignoring BOTH elected branches is tyranny.

[David Nieporent]

The People ELECTED the President.

The people elected Congress, who wrote the statutes that the president is ignoring.

[Purple Martin]

The Electoral College, overriding the majority of the “The People” voting (51.5%), SELECTED the president—constitutionally (despite the majority of votes against Donald Trump all three times he ran, he is the legitimate U.S. president).

The elected Congress indeed spoke clearly, of a set of circumstances that no longer exists.

[F.D. Wolf]

This decision is absurd and outrageous in the extreme, but it does perfectly encapsulate our current constitutional crisis: judges, not just making “wrong” decisions, but purporting to make decisions they have no legal authority to make. Here the court acknowledges that Congress has unequivocally stripped it of jurisdiction, set up administrative procedures the plaintiffs must follow, BUT those procedures may not be “adequate” anymore…. because Trump.

This is judicial tyranny, and it must end. Unfortunately, the man who has the power to end it, the head of the judicial branch, Chief Justice John Roberts is the most pathetic weakling to ever hold his position. There have always been rogue judges, but this has now reached epidemic proportions. If the Supreme Court does not slap all these rogue judges down forcefully, this will end in one of two ways; either we will acquiesce to being ruled by unaccountable judges, or we will simply ignore their pronouncements as illegitimate.

I think of the words of Justice Thurgood Marshall, not exactly an icon of conservative jurisprudence, in Holtzman v. Schlesinger, 414 U.S. 1304 (1973) (Marshall, J., in chambers). Congresswoman Elizabeth Holtzman had obtained an injunction from District Judge Orrin Judd, purporting to order the Nixon administration to stop bombing Cambodia. The Second Circuit stayed the injunction. Holtzman then applied to Justice Marshall to vacate the stay, which he declined to do. She then applied to Justice Douglas, who did vacate the stay. Two days later, Justice Marshall reimposed the stay, noting the agreement of all the other justices except Douglas. Here is what Marshall wrote on the initial application to vacate:

But the proper response to an arguably illegal action [by the President] is not lawlessness by judges charged with interpreting and enforcing the laws. Down that road lies tyranny and repression. We have a government of limited powers, and those limits pertain to the Justices of this Court as well as to Congress and the Executive. Our Constitution assures that the law will ultimately prevail, but it also requires that the law be applied in accordance with lawful procedures.

Id. at 1315.

I suspect Chief Justice Roberts (the Circuit Justice for the Fourth Circuit) will grant a stay in this case relatively quickly. But even if Chief Feckless wants to play the “let the regular process play out” game (unlike the judges in this case), I predict this decision will not hold up.

[ReaderY]

I think this decision was straightforward and not only well within, but required by, the text of the congressional statute as construed by standard canons of judicial construction. It is in no way a lawless decision. See my argument above.

[not guilty]

The remand here is for development of a factual record. How will the government be injured, let alone irreparably injured, merely if that factual development occurs going forward?

[David Nieporent]

This is judicial tyranny, and it must end. Unfortunately, the man who has the power to end it, the head of the judicial branch, Chief Justice John Roberts

I am quite certain that the “head of the judicial branch,” does not actually have any special authority here, that the Judicial Power is vested in the Supreme Court (and lower courts), not in the Chief Justice.

[F.D. Wolf]

This lawsuit began in 2020, challenging a policy of the first Trump administration which was largely retained by the Biden administration. Rather than running straight to the courthouse, had the plaintiffs here instead challenged the policy under the administrative procedures clearly laid out by Congress, they almost certainly would have had a decision by now, and, had they not liked the decision, would still have judicial review available to them.

[Max S.]

Let start by stating that I am not a lawyer or legal scholar but only a poor tax payer. Whenever I see a decision that says a judge needs to assess whether something is working as intended and if it is not they can decide, it raises a red flag. To me it seems that the law is descending into personal preference and veering away from objective analysis.

[Stepped Reckoner]

You couldn’t be bothered to mention that all three circuit judges on this panel were nominated by Democrat presidents and confirmed by close votes? Or that the judge who authored the opinion is a newly confirmed left-leaning labor lawyer? Really?

Somehow it seems likely that, if the situation were reversed, i.e., if the decision had _thrown out_ the challenge to President Trump’s action, had been written by Emil Bove, and had been signed by two other GOP nominees confirmed by partisan close votes, that those facts would have been brought up. But you know, Trump Trump Trump Trump Trump. When a weird TL;DR novel legal opinion based on one of the most questionable legal doctrines of recent years (Thunder Basin) is written by one of the most partisan left labor advocates in the country just months after she was barely slipped onto the court, we pretend that the judges are neutral arbiters who don’t have any personal priors that could possibly be influencing their curious decision. But when Fifth Circuit Trump-nominated judges render decisions disfavoring similar claims, it seems to always be trumpeted to be Trump cultists all the way down.

This used to be a better law blog, an old man somewhere grumbled.

[David Nieporent]

I was not aware that lower courts were free to disregard Supreme Court decisions because random Volokh commenter thinks those decisions are “questionable.” (Not to mention that a 30-year old decision isn’t all that recent.)