MSPB: Constructive Removal Claims are For the Separated
A roller-coaster ride of adjudication, regulation, repeal, and deregulation that ended almost two decades ago finally saw its outcome established in Board caselaw last week, as the Board ruled that sitting Administrative Law Judges cannot claim a “constructive removal” while still employed.
A “constructive removal” case in the federal employment sector typically arises when an employee claims that they were coerced or otherwise forced to resign or retire (both presumptively voluntary actions) against their will, or based on misinformation. But years ago, ALJs successfully claimed that they suffered “constructive removal” when they were pulled from adjudication of their cases. In 1985, the MSPB, then a relatively new agency, held that the term “removal” may include actions that impair an ALJ’s qualified judicial independence in a case called In re Doyle, 29 M.S.P.R 170, 174-175 (1985).
More than a decade after that holding, in 1997, the MSPB codified that holding in its regulations, allowing ALJs who “allege[] that an agency has interfered with the judge’s qualified decisional independence so as to constitute an unauthorized action under 5 U.S.C. § 7521 may file a complaint with the Board” under the exact same procedures that the agency uses to terminate ALJs.
But a few years later, the MSPB reversed its decision In re Doyle, and countermanded its own regulation, in Tunik v. Social Security Administration, 93 M.S.P.R. 482 (2003) and a follow-up case in 2005. In those cases, the Board determined that its holding in Doyle was inadvertently causing the agencies to have to seek permission from the Board every time it wanted to take non-termination actions regarding case processing or training. According to the Board, “this sort of micromanagement, and the likely slowdown in the agency’s work that it would cause,” was not what Congress intended when it passed 5 U.S.C. § 7521.
After those holdings, the Board dismissed a slew of constructive removal complaints filed by sitting ALJs for lack of jurisdiction. This led to a consolidated appeal by the ALJs to the Federal Circuit Court of Appeals in 2005, where the Federal Circuit agreed with the Board’s reasoning that the plain language of 5 U.S.C. § 7521 reasonably can be read to apply only to cases “of actual separation from employment as an ALJ,” but found that the Board’s post-Doyle regulation (which had never been repealed) was still controlling. And so those cases which had been dismissed for lack of jurisdiction were remanded for adjudication.
After that holding, in 2006, the Board quickly adopted an amendment to its regulations, clarifying that a sitting ALJ may not bring a constructive removal complaint under 5 U.S.C. § 7521.
On August 1, 2023, the MSPB issued its first decision on an ALJ constructive removal claim of the post-Tunik regulatory scheme. It took the opportunity to “clarify that a sitting ALJ may not bring a constructive removal complaint under 5 U.S.C. § 7521.” Here, the Board said, it was “undisputed” that the [ALJ] remains employed in his ALJ position, though he was on paid administrative leave during the adjudication of his employing agency’s complaint before the Board under Section 7521, asking the Board to find good cause for his removal. As such, the Board found that it lacked jurisdiction to hear his constructive removal complaint.
Read the full case: Jarboe v. HHS.
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