Jackler and Jaroch Consolidation v. Department of Justice

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2026 MSPB 3

Docket No. CF-0752-26-0069-I-1

Jackler and Jaroch Consolidation,

Appellant,

v.

Department of Justice,

Agency,

and

Director of the Office of Personnel

Management,

Intervenor.

March 20, 2026

Robert P. Erbe , Esquire, Tucson, Arizona, for the appellant.

Nathaniel A.G. Zelinsky , Esquire, Washington, D.C., for the appellant.

Lourdes M. Guillaume , Esquire, New York, New York, for the agency.

Matthew Tanny Pizzo , Esquire, and Robert Ley , Esquire,

Falls Church, Virginia, for the agency.

Patrick Alexander Ehler , Esquire, and Jordan Lee Perkins , Esquire,

Washington, D.C., for the intervenor.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

2

OPINION AND ORDER

¶1 The agency has filed petitions for review of the initial decisions,

which reversed the appellants’ removals and ordered the agency to retroactively

restore the appellants effective February 14, 2025. For the reasons discussed

below, we CONSOLIDATE these appeals, 1 GRANT the agency’s petitions for

review, VACATE the initial decisions, and DISMISS these appeals for lack of

jurisdiction. We hold that the Attorney General’s exercise of constitutional

Article II removal authority in relation to these appellants—whom we determine,

based on their duties, are inferior officers who exercise significant adjudicative and

policymaking authorities on behalf of the United States—abrogates

otherwise-applicable statutory removal protections and thus deprives the Board of

jurisdiction.

BACKGROUND

¶2 On June 21, 2021, the agency appointed appellant Jackler to the

position of Assistant Chief Immigration Judge in the agency’s Executive Office for

Immigration Review (EOIR) in its New Orleans office. 2 Jackler v. Department of

1

Pursuant to 5 C.F.R. § 1201.36(a)(1), because appellant Jackler and appellant Jaroch

occupied identical positions for the agency and were removed by the agency utilizing the

same legal theory, we hereby consolidate the appellants’ appeals, MSPB Docket

No. DA-0752-25-0330-I-1 and MSPB Docket No. DA-0752-25-0328-I-1, respectively,

into one collective appeal, identified as MSPB Docket No. CF-0752-26-0069-I-1.

Additionally, we acknowledge that the agency moved to consolidate the appellants’

appeals along with three other appeals on the basis that they dealt with similar factual and

legal issues. Jackler v. Department of Justice, MSPB Docket No. DA-0752-25-0330-I-1,

Initial Appeal File (Jackler IAF), Tab 9; Jaroch v. Department of Justice, MSPB Docket

No. DA-0752-25-0328-I-1, Initial Appeal File (Jaroch IAF), Tab 9. The administrative

judge denied the agency’s motion due to distinctions in factual records and legal theories

between the five appeals. Jackler IAF, Tab 11 at 2; Jaroch IAF, Tab 12 at 2. Despite this

matter being consolidated now, we are not revisiting or reversing the ruling of the

administrative judge declining to consolidate the five appeals at that time.

2

Appellant Jackler was initially appointed to the position on June 21, 2021, for a period

not to exceed 24 months. Jackler IAF, Tab 5 at 5-6. On May 31, 2023, the Attorney

General appointed appellant Jackler to the same position effective June 19, 2023, on a

permanent basis. Id. at 6.

3

Justice, MSPB Docket No. DA-0752-25-0330-I-1, Initial Appeal File (Jackler

IAF), Tab 5 at 28. On September 26, 2021, the agency appointed appellant Jaroch

to the position of Assistant Chief Immigration Judge in EOIR’s Buffalo office. 3

Jaroch v. Department of Justice, MSPB Docket No. DA-0752-25-0328-I-1, Initial

Appeal File (Jaroch IAF), Tab 7 at 30. Appellant Jaroch subsequently relocated to

the agency’s Houston office, holding the same position. Jaroch IAF, Tab 4

at 13-14.

¶3 As immigration judges, the appellants conducted “proceedings for

deciding the inadmissibility or deportability of an alien,” 8 U.S.C. § 1229a(a)(1),

which proceedings are “the sole and exclusive procedure for determining whether

an alien may be admitted to the United States or . . . removed from the United

States,” 8 U.S.C. § 1229a(a)(3). When conducting these proceedings, the

appellants were empowered to “administer oaths; receive evidence; interrogate,

examine, and cross-examine . . . witnesses”; “issue subpoenas”; and

“sanction . . . any action or inaction in contempt of the judge’s proper exercise of

authority.” 8 U.S.C. § 1229a(b)(1). At the close of proceedings, the appellants

issued decisions determining “whether an alien is removable from the United

States.” 8 U.S.C. § 1229a(c)(1)(A).

¶4 As immigration judges, the appellants acted as delegates of the

Attorney General in cases before them. 8 C.F.R. § 1003.10(a). In doing so, they

exercised their independent judgment and discretion in conducting hearings and

issuing decisions. 8 C.F.R. § 1003.10(b). Their decisions were not subject to

unlimited appellate review and could potentially become the final order of the

United States if not appealed. 8 C.F.R. §§ 1003.1(b), 1241.1. They also had

authority to grant aliens a wide range of immigration benefits, including asylum.

8 C.F.R. § 1208.2(b).

3

Appellant Jaroch was initially appointed to the position on September 26, 2021, for a

period not to exceed 24 months. Jaroch IAF, Tab 1 at 2. On September 25, 2023, the

Attorney General appointed appellant Jaroch to the same position on a permanent basis.

Jaroch IAF, Tab 4 at 27.

4

¶5 On February 14, 2025, the Acting Director of EOIR informed both

appellants that their employment was being terminated effective that day. Jackler

IAF, Tab 1 at 7; Jaroch IAF, Tab 1 at 7. On February 20, 2025, appellant Jaroch

timely appealed his termination to the Board. Jaroch IAF, Tab 1. On February 21,

2025, appellant Jackler timely appealed her termination to the Board. Jackler IAF,

Tab 1.

¶6 Before the administrative judge, the appellants’ litigation proceeded

on parallel and largely identical tracks. The appellants argued that they met the

requirements to qualify as employees under 5 U.S.C. § 7511, and thus were entitled

to—but did not receive—the pretermination procedures set forth in 5 U.S.C.

§ 7513(b). Jackler IAF, Tab 3 at 6-12; Jaroch IAF, Tab 4 at 6-12. The agency

argued that Article II of the U.S. Constitution authorized the Attorney General to

remove individuals qualifying as inferior officers, such as the appellants, without

restriction; and that the exercise of this authority abrogated otherwise applicable

statutory removal protections. Jackler IAF, Tab 23 at 6-20; Jaroch IAF, Tab 25

at 6-20. The agency argued that the Board has jurisdiction to hear the appellants’

removal appeals, but that section 7513 could not restrict the President of the United

States’ Article II authority to remove the appellants, and that the appellants were

therefore at-will employees. Id. The agency argued that it thus had provided the

appellants all the pretermination process they were due: none. 4 Id.

¶7 The Office of Personnel Management (OPM) notified the Board of its

intent to exercise its statutory right to intervene in these appeals. Jackler IAF,

4

The agency initially argued that the Board lacks jurisdiction over the appeals because

the Board has authority only to hear actions taken under specific statutes, including

Title 5, and the agency took the removal action under constitutional, not statutory,

authority. Jackler IAF, Tab 5 at 5, 7-9; Jaroch IAF, Tab 7 at 6, 8-10. Subsequently, the

agency withdrew this argument and took the position that the Board has jurisdiction to

hear the appeals. Jackler IAF, Tab 23 at 6; Jaroch IAF, Tab 25 at 6. However, the Board

is not bound by litigants’ concessions regarding jurisdiction; the issue of jurisdiction is

always before the Board, and the Board has a duty to determine its jurisdiction in each

case before it. Waldrop v. U.S. Postal Service, 72 M.S.P.R. 12, 15 (1996).

5

Tab 16; Jaroch IAF, Tab 17. OPM filed a separate brief in both appeals supporting

the agency’s position, arguing in pertinent part that Article II of the Constitution

vests the full executive power in the President; that the President cannot fully “take

Care that the Laws be faithfully executed” if he is unable to remove constitutional

inferior officers at will; and that the Civil Service Reform Act (CSRA) cannot be

read to preclude an Article II removal by the head of a Department. Jackler IAF,

Tab 22 at 5-14; Jaroch IAF, Tab 24 at 5-14. The appellants contested the agency’s

and OPM’s arguments regarding the effect of the Article II removals. Jackler IAF,

Tab 24 at 4-13; Jaroch IAF, Tab 26 at 4-13.

¶8 The administrative judge issued initial decisions finding jurisdiction

and reversing the appellants’ removals. Jackler IAF, Tab 28, Initial Decision

(Jackler ID); Jaroch IAF, Tab 30, Initial Decision (Jaroch ID). The administrative

judge found that the appellants’ tenures at the agency qualified them as employees

under 5 U.S.C. § 7511, and thus they were entitled to the procedures set forth in

5 U.S.C. § 7513 prior to their terminations. Jackler ID at 2-5; Jaroch ID at 3-5.

Because the agency concededly did not provide those procedures to the appellants,

the administrative judge reversed their terminations and ordered them restored to

employment. Jackler ID at 2-5, 7-8; Jaroch ID at 3-5, 7-8. Regarding the agency’s

and OPM’s arguments that termination of inferior officers pursuant to Article II

invalidates section 7513’s removal protections, the administrative judge held that,

as an administrative agency, the Board “has long recognized” that it lacks the

authority to invalidate statutory provisions, and the administrative judge therefore

declined to address the agency’s and OPM’s arguments. Jackler ID at 6; Jaroch ID

at 6-7.

¶9 The agency has filed petitions for review of the initial decisions.

Jackler v. Department of Justice, MSPB Docket No. DA-0752-25-0330-I-1,

Petition for Review (Jackler PFR) File, Tab 1; Jaroch v. Department of Justice,

MSPB Docket No. DA-0752-25-0328-I-1, Petition for Review (Jaroch PFR) File,

Tab 1. The agency argues in both petitions for review that the administrative judge

6

erred in declining to consider its constitutional defense as an “as-applied

challenge,” which does not require that the Board overturn a statutory provision,

but that it merely find its application invalid in particular circumstances. Jackler

PFR File, Tab 1 at 8-12; Jaroch PFR File, Tab 1 at 8-12. The agency reiterated its

agreement with the appellants that the Board has jurisdiction over their appeals.

Jackler PFR File, Tab 1 at 8; Jaroch PFR File, Tab 1 at 8. OPM exercised its

statutory authority to intervene in the petitions for review and attached and

incorporated its briefs before the administrative judge for consideration by the

Board. Jackler PFR File, Tab 10; Jaroch PFR File, Tab 10.

ANALYSIS

The Board has authority to consider constitutional challenges as part of its

jurisdictional analysis.

¶10 We begin by clarifying our authority to address constitutional

challenges as part of our jurisdictional analysis. We have previously held that the

Constitution is not an independent source of jurisdiction, and as such we lack

jurisdiction to evaluate a constitutional challenge if we do not otherwise have

jurisdiction over the appeal. Riddick v. Department of the Navy, 41 M.S.P.R. 369,

371-72 (1989) (“[W]e find that constitutional allegations of due process and equal

protection do not confer upon the Board an independent jurisdictional basis to

review matters outside our statutory jurisdiction.”). This remains true for

constitutional challenges to actions that are appealable to the Board—we may

adjudicate allegations that an action was unconstitutional only if we have

jurisdiction over the appeal pursuant to statute or regulation. However, with

respect to constitutional challenges that themselves relate to our jurisdiction over

certain appeals, we must be able to consider such challenges to determine whether

we have jurisdiction over those appeals.

¶11 As noted, the agency argues that the administrative judge should have

considered its constitutional arguments, which the agency explains are threefold:

7

(1) the Board has authority to consider whether the procedural and substantive

protections afforded to employees under section 7513, as applied in this particular

case, are consistent with constitutional requirements (specifically Article II

exercise by an agency head), Jackler PFR File, Tab 1 at 8-12; Jaroch PFR File,

Tab 1 at 8-12; (2) the appellants were inferior officers removable at will under the

Constitution, and thus lacked the property interest in their employment that

otherwise would attach via section 7513(b), Jackler PFR File, Tab 1 at 13-22;

Jaroch PFR File, Tab 1 at 13-22; and (3) the Board must rule on these issues to

comply with its statutory mandate to issue a complete decision on all legal issues

raised by the parties. Jackler PFR File, Tab 1 at 8-12; Jaroch PFR File, Tab 1

at 8-12. The appellants oppose these arguments. Jackler PFR File, Tab 3 at 6-9,

Tab 7 at 8-22; Jaroch PFR File, Tab 3 at 6-9, Tab 7 at 8-22. We consider them

carefully below.

¶12 In support of its argument, the agency submitted a September 26, 2025

memorandum opinion from the Department of Justice’s Office of Legal Counsel

(OLC). The Merit Systems Protection Board’s Authority to Adjudicate

Constitutional Questions within an Administrative Proceeding , 49 Op. O.L.C. __

(Sep. 26, 2025), https://www.justice.gov/olc/media/1415466/dl (last visited

Mar. 20, 2026) (OLC Opinion). In its memorandum, OLC opines, as pertinent to

the arguments made by the agency in this petition for review, 5 that the Board has

5

Although the OLC opinion appears to diverge from Board precedent regarding facial

constitutional challenges, the agency, on petition for review, insists that it challenges

only the administrative judge’s rejection of its as-applied constitutional challenge.

Jackler PFR File, Tab 1 at 8 (“But while the Agency recognizes the Board’s longstanding

view that it lacks ‘authority to determine the constitutionality of statutes,’ the Agency’s

argument does not require such a determination. Rather, the Agency’s position requires

only that the Board consider its constitutional arguments regarding the ‘ application of a

statute.’”) (internal citation omitted; emphasis in original); Jackler PFR File, Tab 13

at 10-11 (“[C]ontrary to Appellant’s claims, the Agency did not request that the Board

invalidate the CSRA or any other statute . . . . As consistently held by the Agency, the

Board need only determine whether the CSRA’s principles and protections would be

unconstitutional as applied to Appellant, rather than whether any CSRA provision is

facially unconstitutional.”) (emphasis in original); Jaroch PFR File, Tab 1 at 8, Tab 13

8

authority to consider “as-applied” constitutional arguments, such as the argument

made by the agency in this appeal. Id. The agency argues that the OLC opinion is

the legal position of the Executive Branch and thus is binding upon the Board.

Jackler PFR File, Tab 2 at 6-7; Jaroch PFR File, Tab 2 at 6-7. The appellants

dispute the agency’s contention about the binding nature of the OLC opinion and

the opinion’s characterization of the agency’s argument as an “as-applied”

constitutional argument, but they do not object to the Board considering it as

supplemental authority. Jackler PFR File, Tab 3 at 6-9, Tab 7 at 8-22; Jaroch PFR

File, Tab 3 at 6-9, Tab 7 at 8-22.

¶13 We need not address the parties’ contentions about the OLC opinion

because, as explained below, we resolve the dispositive issues through application

of long-established Board case law. Additionally, we note that to the extent the

agency cites the OLC opinion in support of its arguments that the Board may

resolve as-applied constitutional challenges and must resolve all dispositive legal

issues raised in an appeal, the OLC opinion recites Board case law and regulations

for these propositions. OLC Opinion at *4-*9.

The Board has the authority to consider the agency’s constitutional defense as an

as - applied challenge.

¶14 The Board has held that it lacks authority to adjudicate the

constitutionality of statutes. Special Counsel v. Gallagher, 44 M.S.P.R. 57, 73

(1990). However, the Board does have authority to adjudicate a constitutional

challenge to an agency’s application of a statute. May v. Office of Personnel

Management, 38 M.S.P.R. 534, 538 (1988). Although we heed the U.S. Supreme

Court’s caution that “the distinction between facial and as-applied challenges is not

so well defined . . .[,]” Citizens United v. Federal Election Commission, 558 U.S.

310, 331 (2010), we hold that, in this appeal, the agency has brought an as-applied

at 10-11. Thus, the agency waived any facial constitutional challenge it might have

maintained, and such challenge is not before us. 5 C.F.R. § 1201.114(b); see McCoy v.

U.S. Postal Service, 108 M.S.P.R. 160, ¶ 16 n.4 (2008) (the Board will not consider

issues not raised in a petition for review).

9

challenge within our authority to address. Indeed, the agency expressly disclaims

any intention of presenting a facial challenge, arguing that it challenges only the

constitutional applicability of section 7513 removal protections to the appellants,

not the validity of the larger statutory scheme. Jackler PFR File, Tab 1 at 8, Tab 13

at 11-12; Jaroch PFR File, Tab 1 at 8; Tab 13 at 11-12.

¶15 The appellants argue that, despite this framing, the agency in fact

presents a facial challenge to the statutory removal provisions, because it seeks to

invalidate statutory removal protections as incompatible with the Constitution.

Jackler PFR File, Tab 7 at 10; Jaroch PFR File, Tab 7 at 10. The administrative

judge agreed with the appellants, holding that the agency’s argument presented a

facial and not an as-applied challenge. Jackler ID at 5-6; Jaroch ID at 5-6. We

disagree.

¶16 The agency does not contend that Article II of the Constitution renders

section 7513 removal protections invalid as a matter of law or in all circumstances.

The agency argues only that the removal protection provisions cannot be

constitutionally applied to the appellants, whom the agency argues are inferior

officers under the Constitution, because doing so would impinge on the President’s

authority under Article II of the Constitution to manage the Executive Branch. The

agency’s argument hinges on the nature of the appellants’ positions (an issue we

address below) and does not apply to the broad swath of section 7513-protected

employees who are not inferior officers.

¶17 The closest analogue to this situation arises out of recent, related

Article II litigation regarding the Appointments Clause. In Lucia v. Securities and

Exchange Commission, 585 U.S. 237 (2018), and subsequent cases, parties

challenged the validity of various Executive Branch adjudicatory officials’

appointments, arguing that they were invalid under the Appointments Clause of the

Constitution. See, e.g., Brooks v. Kijakazi, 60 F.4th 735, 739-44 (4th Cir. 2023)

(challenging the appointment status of an administrative law judge (ALJ) employed

by the Social Security Administration); Joseph Forrester Trucking v. Director,

10

Office of Workers’ Compensation Programs, 987 F.3d 581, 585 (6th Cir. 2021)

(challenging the appointment status of a Department of Labor ALJ). Although the

adjudicatory officials at issue in those cases all operated under the same statute and

were appointed under the same statutory authority, courts did not treat these

Appointments Clause challenges as facial challenges to the entire statutory

adjudication structure of an agency; instead, they treated them as as-applied

challenges to the appointment of the particular individual official charged with

overseeing the adjudication at issue. Joseph Forrester Trucking, 987 F.3d at 591.

When courts found violations, they ordered remedies for the individual cases at

issue; they did not invalidate statutory provisions. See, e.g., Cody v. Kijakazi,

48 F.4th 956, 963 (9th Cir. 2022) (ordering new hearing for violation of the

Appointments Clause).

¶18 The same is true here. Nowhere does the agency (or OPM) argue that

section 7513’s removal protections are invalid on their face for all Federal

employees. The agency argues only that the specific nature of the appellants’

positions and duties elevate them to a status where these protections cannot

constitutionally be applied to them. Jackler PFR File, Tab 13 at 11-12; Jaroch PFR

File, Tab 13 at 11-12. This is a classic as-applied challenge.

¶19 The appellants argue that the agency’s challenge is more similar to one

addressed in a recent Board decision, Davis-Clewis v. Department of Veterans

Affairs, 2024 MSPB 5. This comparison is inapposite. In Davis-Clewis, the

appellant challenged not just the particular administrative judge adjudicating her

appeal, but instead the removal protections for all of the Board’s administrative

judges, arguing that the statutory removal protections provided to Board

administrative judges made its entire adjudication structure constitutionally

deficient. Davis-Clewis, 2024 MSPB 5, ¶7. Therefore, the appellant in

Davis- Clewis raised a facial challenge, and the Board’s holding in Davis-Clewis

that it could not adjudicate the appellant’s constitutional challenge in that case does

not support the appellants’ position here.

11

¶20 Accordingly, we reverse the initial decisions’ holdings on this issue

and determine that the agency’s constitutional challenge to the appellants’

section 7513 protections was within the Board’s adjudicatory authority as an

as-applied challenge.

The Constitution abrogates the application of section 7513 to inferior officers such

as the appellants, and therefore, the Board lacks jurisdiction over these appeals.

¶21 We now address the agency’s and OPM’s specific constitutional

challenges in these appeals: whether as applied to the appellants, Article II

abrogates the removal protections 5 U.S.C. § 7513 otherwise provides to employees

covered under 5 U.S.C. § 7511, and therefore deprives the Board of jurisdiction

over adverse actions brought under section 7513(d). We hold that it does.

¶22 The Supreme Court first addressed the legality of removal restrictions

for Executive Branch officers in U.S. v. Perkins, 116 U.S. 483 (1886). There, the

Court held that “[w]e have no doubt that when congress, by law, vests the

appointment of inferior officers in the heads of departments, it may limit and

restrict the power of removal as it deems best for the public interest.” Id. at 485. In

other words, the Court held that Congress could establish removal restrictions for

inferior officers in the Executive Branch. Id. Approximately 40 years later, the

Court clarified that such removal restrictions could not, however, require the

President to obtain Senate approval for such removals; the power to remove a

constitutional officer in the Executive Branch remains within the exclusive domain

of the President. Myers v. United States, 272 U.S. 52, 176 (1926). Another

60 years later, as pertinent here, the Court further clarified that the standard for

whether inferior officers’ statutory removal restrictions are constitutional is

whether the limitation deprives the President of control over the official such as to

interfere impermissibly with his constitutional obligation to ensure faithful

execution of the laws. Morrison v. Olson, 487 U.S. 654, 685-93 (1988) (permitting

removal restrictions for independent counsel, whose position had limited

jurisdiction and tenure, combined with lack of policymaking or significant

12

administrative authority). The Court recently reaffirmed this holding in

Seila Law, L.L.C. v. Consumer Financial Protection Bureau, 591 U.S. 197, 218

(2020) (observing that at-will removal should be considered the default position for

officers in the Executive Branch, except for “inferior officers with limited duties

and no policymaking or administrative authority . . . .”), and Kennedy v.

Braidwood Management, Inc., 606 U.S. 748, 762-64 (2025) (discussing

removability at will as “the default presumption” for inferior officers in the

Executive Branch”).

¶23 It is in view of this full landscape that we consider the agency’s

challenge to the applicability of the removal restrictions contained at 5 U.S.C.

§ 7513 to the appellants—and specifically, consider this challenge as it pertains to

our jurisdiction. While the agency asserts that the appellants met the definition of

“employee” under 5 U.S.C. § 7511 and thus were entitled to appeal certain adverse

actions to the Board, Jackler IAF, Tab 23 at 5-6; Jaroch IAF, Tab 25 at 5-6, the

Board nevertheless must satisfy itself that it has jurisdiction over these appeals.

Waldrop v. U.S. Postal Service, 72 M.S.P.R. 12, 15 (1996).

¶24 The agency argues that the Board lacks authority to review the

Attorney General’s exercise of Article II authority to remove inferior officers such

as the appellants. Jackler IAF, Tab 23 at 10-20; Jaroch IAF, Tab 25 at 10-20. For

the reasons set forth below, and in consideration of the particular duties and

authorities of these appellants, we agree.

¶25 As established in Myers and reiterated in Seila Law and Braidwood

Management, Inc., the default rule is that the President possesses unfettered

removal authority over certain constitutional officers in the Executive Branch.

Myers, 272 U.S. at 176; Seila Law, 591 U.S. at 213-18; Braidwood Management,

Inc., 606 U.S. at 762-64. Per the Supreme Court, no entity, including Congress or

the Board, may place restrictions on such authority, nor may they subject that

decision to subsequent review, for doing so would infringe upon the President’s

ability to faithfully execute the laws. Id. While the Court has allowed exceptions

13

for certain officers, it has generally emphasized that any restriction imposed by

Congress upon the President’s authority to remove officers is an unconstitutional

interference with the President’s constitutional obligation to ensure faithful

execution of the laws. Morrison, 487 U.S. at 685-93. Accordingly, for any

removal taken pursuant to Article II authority against an individual subject to

at-will removal under Perkins/Morrison/Seila Law, the Constitution prohibits the

Board from reviewing any aspect of the removal, including whether the removal

was taken for the efficiency of the service, as well as whether the proper

pre-removal procedures were provided, because doing so would impermissibly

interfere with the President’s Article II removal authority. Thus, for any individual

meeting these criteria, the Board necessarily lacks jurisdiction over an appeal of an

Article II-based removal.

¶26 However, notwithstanding the above discussion, the Supreme Court

made clear in Seila Law that the President’s Article II removal authority does not

necessarily invalidate removal restrictions for all inferior officers in the Executive

Branch. Rather, the President’s Article II removal may still be restricted for

individuals meeting the criteria described in Seila Law—those with limited duties

and no policymaking or administrative authority. Seila Law, 591 U.S. at 218.

Thus, to determine whether the agency is correct with respect to the appellants, we

must answer two separate but related questions. First, we must determine whether

the appellants qualify as inferior officers under the Constitution. If they do, then as

Perkins, Morrison, and Seila Law teach, we must determine whether they are

inferior officers with limited duties and no policymaking or administrative

authority. If the second question is answered in the affirmative, then their statutory

removal restrictions are constitutionally permissible, and we have jurisdiction to

review the agency’s removal actions. However, if they have more than limited

duties, or some level of policymaking or administrative authority, then the

exceptions from Perkins and Morrison do not apply, the restrictions contained

14

within section 7513 cannot be constitutionally applied to them, and we lack

jurisdiction to review the agency’s removal actions.

The appellants were inferior officers under the Constitution.

¶27 In Lucia, and previously in Freytag v. Commissioner, 501 U.S. 868

(1991), the Supreme Court found similar types of non-Article III adjudicatory

officials to be inferior officers. Lucia, 585 U.S. at 247-50; Freytag, 501 U.S.

at 880-82. The appellants’ immigration judge positions share many of the same

pertinent characteristics and duties as the ALJs in Lucia and the special trial judges

(STJs) in Freytag. Like those positions, the appellants’ positions were continuing

and permanent. Jackler IAF, Tab 5 at 28; Jaroch IAF, Tab 7 at 30. As immigration

judges, the appellants conducted proceedings “for deciding the inadmissibility or

deportability of an alien.” 8 U.S.C. § 1229a(a)(1). In carrying out these

proceedings, the appellants must “administer oaths, receive evidence, and

interrogate, examine, and cross-examine the alien and any witnesses.” 8 U.S.C.

§ 1229a(b)(1). The appellants may also issue subpoenas for the attendance of

witnesses and presentation of evidence and can sanction by civil money penalty any

action in contempt of their proper exercise of authority under the law. Id. Finally,

at the end of a proceeding, the appellants issue a decision as to whether an alien is

removable from the United States. 8 U.S.C. § 1229a(c)(1)(A). Thus, in conducting

adversarial inquiries, immigration judges have duties and powers equivalent to

those of SEC ALJs and U.S. Tax Court STJs. See Lucia, 585 U.S. at 248; Freytag,

501 U.S. at 880-82. Accordingly, because SEC ALJs and Tax Court STJs are

considered inferior officers, we find that the appellants also qualify as inferior

officers. See Duenas v. Garland, 78 F.4th 1069, 1072-74 (9th Cir. 2023) (finding

immigration judges to be inferior officers).

The appellants exercised significant duties, including policymaking

and administrative authority.

¶28 With the question of the appellants’ officer status settled, we must

now determine whether they meet the Perkins/Morrison/Seila Law exception

15

allowing removal restrictions for inferior officers who have only limited duties and

no policymaking or administrative authority. We conclude that they do not meet

this exception because they exercised significant policymaking and administrative

authority. As immigration judges, the appellants were charged with making

decisions regarding the inadmissibility or deportability of an alien. 8 U.S.C.

§ 1229a(a)(1). By regulation, they exercised their “independent judgment and

discretion and may take any action consistent with [their] authorities under the Act

and regulations that is necessary or appropriate for the disposition or alternative

resolution of” cases before them—including conducting hearings and exercising

the adjudicative authorities described above. 8 C.F.R. § 1003.10(b). While it is

true that their decisions were subject to review by both the Board of Immigration

Appeals and the Attorney General, 8 C.F.R. §§ 1003.1(h)(1)(i), 1003.10(c), and

that only the Board and the Attorney General are empowered to issue binding,

precedential decisions in immigration decisions, 8 C.F.R. § 1003.1(g)(2), their

decisions could still become the final decisions of the United States if not appealed.

8 C.F.R. § 1241.1. Additionally, even if an alien does appeal a decision, that right

to appeal may be limited in scope. Thus, many circumstances exist where an

immigration judge’s decision will remain the final decision of the United States.

8 C.F.R. § 1003.1(b). 6

¶29 Moreover, an immigration judge’s decisions can have a major impact

on a significant area of our nation’s domestic and foreign policy. As the Supreme

Court stated in Arizona v. United States, “[i]mmigration policy can affect trade,

investment, tourism, and diplomatic relations for the entire Nation, as well as the

perceptions and expectations of aliens in this country who seek the full protection

of its laws . . . . Perceived mistreatment of aliens in the United States may lead to

6

We note that in United States v. Arthrex, 594 U.S. 1, 26 (2023), the Supreme Court

allowed administrative patent judges (APJs) to retain for-cause removal protections as

inferior officers provided that all APJ decisions are subject to review by the Director of

the U.S. Patent and Trademark Office. The limited and conditional review of

immigration judge decisions makes this case distinguishable from Arthrex.

16

harmful reciprocal treatment of American citizens abroad.” 567 U.S. 387, 395

(2012). Essentially, the appellants as immigration judges wielded vast

administrative authority in an area of significant consequence, and the decisions

entrusted to their discretion can “involve policy choices that bear on this Nation’s

international relations.” Id. at 396. The authority provided to them thus placed

them in a position that had the potential to dramatically impact the rights of those

inside our borders, as well as the nation’s standing in the world. Their positions are

not comparable to the independent prosecutor in Morrison, who exercised limited

jurisdiction and had no ability to affect policy. Thus, the appellants cannot fit

within the exception for inferior officers established in Morrison and Perkins, and

reaffirmed by Seila Law and Braidwood, and the Constitution requires that they be

removable at will.

¶30 Because we find that the appellants do not meet the requirements

necessary to allow removal restrictions for their positions, we find that 5 U.S.C.

§ 7513 cannot be applied to them, as doing so would unconstitutionally infringe

upon the President’s ability to faithfully execute the laws. We therefore must

dismiss these appeals for lack of jurisdiction.

¶31 Our holding in this case does not mean that an agency can deprive the

Board of jurisdiction over an adverse action merely by invoking Article II

authority. However, if we find that a particular employee is subject to at-will

Article II removal, we must dismiss their appeal for lack of jurisdiction because

5 U.S.C. § 7513, including the grant of Board jurisdiction in section 7513(d),

cannot constitutionally apply to that employee. An individual who otherwise meets

the definition of an employee under 5 U.S.C. § 7511 is entitled to come before the

Board for a determination of whether the section 7513 protections apply.

We deny the agency’s request to vacate the interim relief orders.

¶32 The agency requests that we vacate the interim relief awarded to

appellants by the initial decisions. Jackler PFR File, Tab 1 at 12; Jaroch PFR File,

Tab 1 at 12. We decline to do so. Under 5 U.S.C. § 7701(b)(2), an initial decision

17

will provide appropriate interim relief to a prevailing appellant “effective upon the

date of the initial decision and remaining in effect until the date of the final order of

the Board on any petition for review, unless the judge determines that the granting

of interim relief is not appropriate.” 5 C.F.R. § 1201.111(c)(1). The agency may

decline to return the appellants to their place of employment if it determines that

the return or presence of the appellants will be unduly disruptive to the work

environment but must provide pay and benefits. Id. The initial decisions here

ordered interim relief consistent with their reversal of the appellants’ removals.

Jackler ID at 8; Jaroch ID at 8-9.

¶33 The agency certified that it properly complied with the interim relief

order by reinstating the appellants to their positions of record effective the date of

the initial decisions, maintaining them in a non-duty status based on its

determination that returning them to duty would cause an undue disruption to the

work environment, and paying them appropriate pay and benefits from the date of

the initial decisions. Jackler PFR File, Tab 1 at 24; Jaroch PFR File, Tab 1 at 24.

¶34 As set forth in the applicable statute and regulation, the agency’s

interim relief obligations automatically terminate upon the issuance of this final

Opinion and Order. 5 U.S.C. § 7701(b)(2)(A); 5 C.F.R. § 1201.111(c)(1); see

Jackler ID at 8; Jaroch ID at 8-9. Nothing in the statute or the regulation authorizes

the Board to vacate properly awarded interim relief. Cf. Bruneau v. Department of

the Navy, 73 M.S.P.R. 308, 311 (1997) (vacating interim relief as improperly

granted where the agency had already, independent of interim relief, returned the

appellant to duty and restored his pay, compensation, and benefits). Indeed, the

purpose of interim relief is to maintain a prevailing appellant in a financial and

employment status that permits them to await the outcome of the Board’s final

order, whether or not the Board ultimately affirms the initial decision. Interim

relief thus is distinct from back pay, which restores appellants to the status quo ante

before the agency action at issue, and so—unlike interim relief—back pay is

retroactive to the date of the reversed agency action. See 5 U.S.C. § 7701(b)(2)(C)

18

(providing interim relief does not require payment of back pay prior to issuance of

a final decision); 5 C.F.R. § 772.102. The agency has not argued that the interim

relief awards here were improper for any reason other than that the agency

disagreed with the initial decisions’ reversal of the removal actions, Jackler PFR

File, Tab 1 at 12; Jaroch PFR File, Tab 1 at 12, and we find that the interim relief

awards were consistent with statute, regulations, and our precedent. E.g., Stewart

v. Department of Transportation, 2023 MSPB 18, ¶ 7.

ORDER

¶35 For the foregoing reasons, we dismiss these appeals for lack of

jurisdiction. This is the final decision of the Merit Systems Protection Board in

these appeals. Title 5 of the Code of Federal Regulations, section 1201.113

(5 C.F.R. § 1201.113).

NOTICE OF APPEAL RIGHTS 7

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such review

and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we

offer the following summary of available appeal rights, the Merit Systems

Protection Board does not provide legal advice on which option is most appropriate

for your situation and the rights described below do not represent a statement of

how courts will rule regarding which cases fall within their jurisdiction. If you

wish to seek review of this final decision, you should immediately review the law

applicable to your claims and carefully follow all filing time limits and

requirements. Failure to file within the applicable time limit may result in the

dismissal of your case by your chosen forum.

7

Since the issuance of the initial decisions in this matter, the Board may have updated the

notice of review rights included in final decisions. As indicated in the notice, the Board

cannot advise which option is most appropriate in any matter.

19

Please read carefully each of the three main possible choices of review below

to decide which one applies to your particular case. If you have questions about

whether a particular forum is the appropriate one to review your case, you should

contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to the

U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that any

attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of discrimination.

This option applies to you only if you have claimed that you were affected by an

action that is appealable to the Board and that such action was based, in whole or in

20

part, on unlawful discrimination. If so, you may obtain judicial review of this

decision—including a disposition of your discrimination claims —by filing a civil

action with an appropriate U.S. district court (not the U.S. Court of Appeals for the

Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C.

§ 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017).

If you have a representative in this case, and your representative receives this

decision before you do, then you must file with the district court no later than

30 calendar days after your representative receives this decision. If the action

involves a claim of discrimination based on race, color, religion, sex, national

origin, or a disabling condition, you may be entitled to representation by a

court-appointed lawyer and to waiver of any requirement of prepayment of fees,

costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding all

other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and

your representative receives this decision before you do, then you must file with the

EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

21

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If

so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review

either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals

of competent jurisdiction. 8 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

8

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB

decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the

Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All

Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat.

1510.

22

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to the

U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that any

attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Gina K. Grippando

Clerk of the Board

Washington, D.C.