After the Supreme Court issued its decision in Lucia v. SEC in 2018, a few federal agencies began presenting novel constitutional arguments in MSPB appeals – namely that the MSPB administrative judges (AJs) were improperly appointed and thus had no authority to decide appeals. On November 9, 2022, the U.S. Court of Appeals for the Federal Circuit issued a decision in McIntosh v. Dept. of Defense, ruling that MSPB AJs were not improperly appointed as they are not principal officers under the Appointment Clause of the U.S. Constitution. See U.S. Const. Art. II, § 2, c. 2. This decision resolves the question left open after Luica regarding the authority of MSPB AJs to issue decisions concerning federal employee appeals.
McIntosh’s constitutional argument
The appellant in McIntosh v. Department of Defense was removed from her position and appealed that removal to the MSPB. The MSPB issued a decision sustaining the DoD’s removal decision. The appellant appealed the MSPB’s decision to the Federal Circuit, the federal appellate court with jurisdiction over most MSPB appeals. In her appeal to the Federal Circuit, the appellant argued that MSPB AJs are improperly appointed principal officers under the Appointments Clause. Specifically, the appellant asserted that MSPB AJ’s were principal officers, and as such, under the Appointments Clause, must be nominated by the President and confirmed by the Senate; thus, absent such nomination and confirmation, MSPB AJ’s were unconstitutionally appointed. As such, the appellant argued, MSPB AJs did not have the authority to issue decisions regarding federal employee appeals. In its decision, the Federal Circuit rejected the appellant’s argument that the AJs are principal officers.
Federal Circuit rejects the Appointments Clause argument
In rejecting this argument, the Federal Circuit first distinguished between the two types of constitutional officers: principal officers and inferior officers. The Supreme Court held that an inferior officer is one who has a superior and whose work is directed and supervised at some level by others who were nominated by the President and confirmed by the Senate. Edmond v. U.S., 520 U.S. 651 (1997).
The Federal Circuit in McIntosh held that MSPB AJs are not principal officers because, among other things, the AJs’ decisions are subject to review by the MSPB’s three-member Board – who are nominated by the President and confirmed by the Senate (i.e., principal officers). Importantly, the Federal Circuit held that the Board “maintains significant review authority over [AJs’] decisions.”
What this means
In the end, while the appellant in McIntosh could petition to the Supreme Court to review this decision, it is unlikely the Court would take up the case. Thus, the Federal Circuit’s McIntosh decision marks the likely end of the argument that AJs are improperly appointed constitutional officers.
If you have questions about this matter or another employment-related issue, please request a consultation with one of our experienced attorneys.