Court Affirms Federal Appeals Agency's Judges Constitutional

[Top Tier]

Court Affirms That Federal Employee Appeals Agency's Judges Are Constitutionally Appointed

Elfina McIntosh, a former Defense Department employee, had challenged her firing in 2017 on the ground that she was retaliated against as a whistleblower. In making her case before the Merit Systems Protection Board and subsequently to the U.S. Court of Appeals for the Federal Circuit, McIntosh argued the MSPB administrative judge who heard her initial appeal was unconstitutionally appointed. The decision to uphold her removal should therefore be struck down, McIntosh said.

The Federal Circuit ruled that MSPB’s administrative judges are not principal officers as they only issue an initial decision that can be further appealed to the agency’s central board. The court further found the judges are not principal officers simply because they enjoy “for cause” firing protection. The court did not formally rule on whether the judges are inferior officers.

Article here.

[foghorn]

The link didn't go through. so I turned up the opinion here:
cafc.uscourts.gov/opinions-orders/19-2454.OPINION.11-9-2022_2030956.pdf

However it looks like the Court did find that if they were inferior officers the issue was moot as the MSPB had ratified the appointments. It noted:
"Even if the administrative judges are inferior officers,
any issues with their appointment have since been remedied. A quorum of the reconstituted Board, who qualify as
“heads of departments” under the Appointments Clause,
issued a Ratification Order on March 4, 2022 that ratified
the prior appointments of administrative judges, “approv[ing] these appointments as our own under Article II
of the Constitution.” U.S. Merit Systems Protection Board
Ratification Order (Mar. 4, 2022), available at
www.mspb.gov/foia/files/AJ_Ratification_Order_3-
4-2022.pdf "

[superalj]

See the 5th circuit case on the Charles Hall blog quoting an article in Slate? Scary stuff…

socsecnews.blogspot.com/2023/02/i-thought-we-decided-social-security.html

“

At least seven different federal courts dismissed this theory until it landed in the 5th Circuit, the nation’s Trumpiest appeals court. In May 2022, Judge Edith Jones—a Ronald Reagan appointee and hard-right bomb-thrower—wrote a 39-page concurrence asserting that the CFPB is funded unconstitutionally. Four other judges joined her. Then, in October, a three-judge panel formally declared that the CFPB’s independent budget mechanism renders the entire agency unconstitutional. Judge Cory Wilson, writing for the panel, revoked the CFPB’s ability to issue or enforce any regulations. (All three members of the panel were appointed by Donald Trump.) Thus, under the current law of the 5th Circuit, the CFPB effectively does not exist.

You might wonder: What does this skirmish over a small financial agency have to do with hundreds of billions of dollars in annual entitlement spending? The answer: everything. In her concurrence, Jones took pains to clarify that her reasoning was not limited to the CFPB. Jones announced that all “appropriations to the executive must be temporally bound.” If Congress does not put a “time limit” on funding, it gives the executive branch too much discretion over spending. Under the Constitution, she claimed, the executive must “come ‘cap in hand’ to the legislature at regular intervals” to ensure that it remains “dependent” and “accountable.” Judge Wilson approvingly cited this idea in his own opinion formally invalidating the CFPB, highlighting the “egregious” nature of the agency’s “perpetual funding feature.”

[jagvet]

Maybe read the actual opinion instead of an inflammatory article from a blog.

www.ca5.uscourts.gov/opinions/pub/18/18-60302-CV2.pdf

The majority returned the case to the district court for proceedings in line with Seila Law (ability of president to remove appointees). Judge Jones agreed, but also added that because the CFPB can determine its own budget without congressional appropriations and draws money from the Treasury, she finds that the agency is unconstitutional. She distinguished CFPB from Social Security in that SSA has a congressionally appropriated budget.

"Bomb thrower"? Hardly.

[superalj]

Good point but I used to practice in the Fifth Circuit and a familiar with Judge Jones. Fortunately, I don’t have to read her opinions anymore let alone a 39 page concurrence. Thankfully, she never made it to SCOTUS as she would fit right in with Thomas and Alito.

[hillsarealive]

I don't know anything about Judge Jones, but here are the first two lines of her concurrence

As this nation careens past $30 trillion in national debt, risking bankruptcy during our children’s lifetimes, one may ask: is there no institutional check on government spending? In fact, there is. The Constitution commands that “[n]o money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art I,
§ 9, cl. 7.

This sort of gives the impression that we have this big national debt because of appropriations that were not authorized by Congress. Or that tightening the appropriation requirement would resolve the national debt, or at least lower it in some meaningful way.  Which is sortof off-target, right?  Whatever you think about the national debt, you can't pin it on unauthorized spending.

The rest of the concurrence is equally off-target and unpersuasive to my mind. I'll let others see for themselves, but it seems to me that Judge Jones views the CFPB as self-funding when, in fact, it isn't. Congress put the funding scheme in place, the scheme includes limits, and Congress could change it tomorrow.

Listen, I don't have strong feelings about the CFPB.   But this concurrence is part and parcel of this trend of federal judges taking a hammer to the administrative state in the name of a weird, ahistorical reading of the Constitution, and that does worry me.  My two cents.

[jagvet]

The issue is if Congress can set in motion an agency which can make its own budget without annual appropriations. Congress has been smacked in the past. We would still have Commissioner Saul if the Supreme Court hadn't held that the Director of CFPB can be removed at will by the President even if Congress gave that person a term of office that continues on. With that ruling, Biden fired Saul even though his term wasn't up.

In other words, Congress can't protect a presidential appointee from being fired. This case holds that Congress can't make an executive agency self-funded.

I generally cringe when judges use over-the-top rhetoric, including gratuitous poetry and gratuitous political language. It doesn't mean she's wrong on the law.

[roggenbier]

A man cannot imagine an agency more Putin like than the CFPB…..