# Jackler and Jaroch Consolidation v. Department of Justice

> Merit Systems Protection Board · March 20, 2026 · 2026 MSPB 3

URL: https://www.frixlaw.com/law-library/cases/11279563

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** March 20, 2026
- **Citations:** 2026 MSPB 3
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11279563

## How later opinions describe it (automated extraction)

- discussing 8 U.S.C. § 1229a

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11279563. Public record. Not legal advice.