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Federal Employees: You be the Judge


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DroneBee  
#1 Posted : Wednesday, July 12, 2017 8:01:30 PM(UTC)

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There is a new case that was addressed by the Court of Appeals for the Federal Circuit, May 9, 2017. https://federalnewsradio...hority-unconstitutional/ An SES was removed, and the removal was sustained by the MSPB Board, but the Court remanded it back to the MSPB:

"Conclusion: For the foregoing reasons, we conclude that by prohibiting Board review of administrative judges' decisions, Congress impermissibly vests through § 713 significant authority in administrative judges. Accordingly, we declare § 713(e)(2) and related portions of § 713(e)(3) and § 713(e)(5) invalid, but conclude that they are severable from the remainder of § 713. Thus, the proper remedy to the constitutional flaw in § 713 is to sever those portions of the statute and leave the remainder intact. Upon severing the offending portions of § 713, Board review of administrative judges' decisions is now permitted. Accordingly, the appropriate relief here is to remand to the Board for its review of the administrative judge's decision affirming Ms. Helman's removal. Ms. Helman is free to pursue before the Board her due process claims and the broader constitutional question of whether administrative judges hearing appeals subject to Board review under § 7701 of Title 5 are inferior officers.
We remand for the MSPB to take appropriate action on Ms. Helman's petition for review of the administrative judge's initial decision."

This is for SESs, but I thought it was interesting as the MSPB is rarely overturned by the Court.

Edited by user Wednesday, July 12, 2017 8:02:26 PM(UTC)  | Reason: Not specified

DroneBee  
#2 Posted : Thursday, July 13, 2017 8:03:33 AM(UTC)

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This case is regarding Sharon Helman v. Dep't of Veterans Affairs, United States Court of Appeals for the Federal Circuit, May 9, 2017, is interesting. http://www.cafc.uscourts...6.Opinion.5-5-2017.1.PDF

First of all, I couldn't find any reference to Helman on the MSPB decisions website - surprise! Secondly, the decision brings up the issue that an MSPB Administrative Judges (AJs) is just "mere employee and career civil servant" who are "not appointed as an officer of the United States." The Court of Appeals for the Federal Circuit found "the authority here to render the decisions of the MSPB, and thereby exercise significant discretion and independent authority, is also a "significant" duty that can only be performed by officers of the United States."

The case may be applicable to not only MSPB AJs, but also EEOC AJs, as none of them are appointed as officers of the United States. Yet, they are afforded "significant discretion and independent authority" which is a "significant" duty and per this Court case, is not allowable.
TheRealOrange  
#3 Posted : Thursday, July 13, 2017 10:33:18 AM(UTC)
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Originally Posted by: DroneBee Go to Quoted Post
This case is regarding Sharon Helman v. Dep't of Veterans Affairs, United States Court of Appeals for the Federal Circuit, May 9, 2017, is interesting. http://www.cafc.uscourts...6.Opinion.5-5-2017.1.PDF

First of all, I couldn't find any reference to Helman on the MSPB decisions website - surprise! Secondly, the decision brings up the issue that an MSPB Administrative Judges (AJs) is just "mere employee and career civil servant" who are "not appointed as an officer of the United States." The Court of Appeals for the Federal Circuit found "the authority here to render the decisions of the MSPB, and thereby exercise significant discretion and independent authority, is also a "significant" duty that can only be performed by officers of the United States."

The case may be applicable to not only MSPB AJs, but also EEOC AJs, as none of them are appointed as officers of the United States. Yet, they are afforded "significant discretion and independent authority" which is a "significant" duty and per this Court case, is not allowable.

The court's ruling is not about MSPB admin judges' authority generally. Rather, it is about the authority to render final decisions that cannot be appealed. The court notes: "Under the conventional Title 5 MSPB appeal process, the Board typically refers its cases to an administrative judge, . . but once the administrative judge makes an initial decision, the Board may review the decision and render its own final decision...." Therefore, the court states that "through this framework, Title 5 permissibly vests in the members of the Board—appointed by the President and confirmed by the Senate, . . the authority to render a final decision overturning another officer’s decision." That is not true of the statute at issue in the case. That statute was put into place to make it easier for the Secretary of Veterans Affairs to remove or demote senior executives in the agency for poor performance, and it "prohibits any review of the administrative judge’s decision, thereby vesting this authority entirely in an administrative judge." It is that provision that was determined to be unconstitutional and was severed from the statute. The authority of MSPB admin judges in general was left undisturbed by the decision. In fact, it was specifically held to be permissible.

With respect to the EEOC, it's admin judges have similar authority to MSPB admin judges. And, their decisions may be appealed to the Commission. Therefore, my guess (and it's just a guess) is that the EEOC appeals process, like the general MSPB appeal process under Title 5, would be found to permissibly vest in the members of the Commission--appointed by the President and confirmed by the Senate--the authority to render a final decision overturning another officer’s decision.
DroneBee  
#4 Posted : Friday, July 14, 2017 3:36:27 AM(UTC)

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Hmmm.... good points. I would argue that due to the length of time for the MSPB to rule - which now is years - the AJ has "significant discretion and independent authority" because there is no Board. I may use this for my EEOC case, which has been outstanding for years - YEARS! (That's if I want to push the case forward.) My AJ certainly has "significant discretion and independent authority" which is a "significant" duty and per this Court case, is not allowable as the AJ is not an appointed as officer of the United States. I think the tide may be turning against these EEOC and MSPB AJs, each of which is a "mere employee and career civil servant" who is "not appointed as an officer of the United States."

Edited by user Friday, July 14, 2017 3:38:50 AM(UTC)  | Reason: Not specified

TheRealOrange  
#5 Posted : Friday, July 14, 2017 5:26:39 AM(UTC)
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Originally Posted by: DroneBee Go to Quoted Post
Hmmm.... good points. I would argue that due to the length of time for the MSPB to rule - which now is years - the AJ has "significant discretion and independent authority" because there is no Board. I may use this for my EEOC case, which has been outstanding for years - YEARS! (That's if I want to push the case forward.) My AJ certainly has "significant discretion and independent authority" which is a "significant" duty and per this Court case, is not allowable as the AJ is not an appointed as officer of the United States. I think the tide may be turning against these EEOC and MSPB AJs, each of which is a "mere employee and career civil servant" who is "not appointed as an officer of the United States."

If you want to use this case as precedent, you will need to find something about the EEOC statute that is distinguishable from the MSPB statute, and that somehow makes the EEOC statute unconstitutional in violation of the Appointments Clause. Keep in mind that the court in this case ruled that the statute with respect to MSPB admin judges in general was permissible under the Constitution (i.e., was not a violation of the Appointments Clause). Also, the statute that was found to be unconstitutional was deemed so only because the “significant authority” vested in the admin judges also prohibited Board review. In the absence of Board review, the authority was held to be in violation of the Appointments Clause. As indicated, since EEOC admin judge decisions can be reviewed by the Commission, you will need to somehow distinguish the statutes in the current case from those applicable to the EEOC.

Also, the decision actually accepted the Federal government’s position, as the government had argued that the 2014 statute was in violation of the Constitution. This was not really a loss for the MSPB, as they will simply need to review the admin judge's decision on remand, just as they would in a normal case. And, the VA and DOJ had actually argued that the statute was invalid. It was more of a loss to the Congress/President. The actual counter argument that the statute was valid was made by several intervenors:

With respect to this question, we agree with Ms. Helman and the government and conclude that by prohibiting Board review, Congress vests significant authority in an administrative judge in violation of the Appointments Clause. We carefully considered the Intervenors’ arguments on this point but find them to be unpersuasive.

Emphasis added. The intervenors were the Veterans of Foreign Wars, AMVETS, Iraq and Afghanistan Veterans of America, National Association for Uniformed Services, Reserve Officers Association, Non-Commissioned Officers Association of the United States, Marine Corps League, Army Reserve Association, Marine Corps Reserve Association, U.S. Army Warrant Officers Association, Special Forces Association, and Jewish War Veterans of the United States. It was their argument that failed. In any challenge to the general authority of EEOC admin judges, regardless of the significance, I doubt the DOJ would make the same assertion and would argue as the court ruled that due to the availability of review, there is no constitutional violation.
thanks 1 user thanked TheRealOrange for this useful post.
DroneBee on 7/15/2017(UTC)
DroneBee  
#6 Posted : Saturday, July 15, 2017 3:12:25 AM(UTC)

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Again, good points! However, I believe that the "unpersuasive" point was about the non-severability of the law, meaning that the law is severable, and thus, sections could be deemed invalid on their own accord. What is interesting about the Helman decision is that the Court *FINALLY* states that the AJs are just employees, and not real judges. It's a significant chink in the armor of the MSPB. So many people - including those fighting for their rights - don't realize that fact - that the AJs are just employees, not appointed officers of the U.S., who cannot perform significant duties that can only be performed by officers of the U.S.

Believe me, good people, this is a significant case - AJs cannot "exercise significant discretion and independent authority."
TheRealOrange  
#7 Posted : Monday, July 17, 2017 3:52:34 AM(UTC)
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Originally Posted by: DroneBee Go to Quoted Post
Again, good points! However, I believe that the "unpersuasive" point was about the non-severability of the law, meaning that the law is severable, and thus, sections could be deemed invalid on their own accord. What is interesting about the Helman decision is that the Court *FINALLY* states that the AJs are just employees, and not real judges. It's a significant chink in the armor of the MSPB. So many people - including those fighting for their rights - don't realize that fact - that the AJs are just employees, not appointed officers of the U.S., who cannot perform significant duties that can only be performed by officers of the U.S.

Believe me, good people, this is a significant case - AJs cannot "exercise significant discretion and independent authority."

I have to disagree. The "unpersuasive" language is used by the court not just with respect to the severability argument, but also specifically with respect to the constitutional issue that was argued and is at the heart of the decision:

In order to address the constitutionality of § 713, we first identify the constitutional flaw, if any, in the statute. With respect to this question, we agree with Ms. Helman and the government and conclude that by prohibiting Board review, Congress vests significant authority in an administrative judge in violation of the Appointments Clause. We carefully considered the Intervenors’ arguments on this point but find them to be unpersuasive.

Again, it is the prohibition of Board review that makes the admin judges' power significant and makes the law unconstitutional in violation of the Appointments Clause. You may be right about the significance of the case, but I am not so sure. It has been known by courts for decades that MSPB and EEOC admin judges are simply employees and not appointed positions, and their powers have been upheld under their implementing statutes and regulations. This case addresses only the 2014 law that did away with Board review. That is where the court found the significance in the admin law judges' powers:

Both Ms. Helman and the government maintain that the authority Congress vests in an administrative judge via § 713—final and unreviewable discretion to affirm or overturn the decision of a cabinet-level official—is significant. We agree.

Emphasis added. I just don't see much in the decision to use in asserting that the general powers of admin judges of the MSPB (or EEOC), that are not final an unreviewable, is of the same significance. Perhaps. Time will tell. Thanks for posting about the decision. It is interesting indeed.
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