When is a Judge Not a Judge?

By William Wiley, March 16, 2021

Perhaps you’ve heard of this issue. In 2018, the US Supreme Court caused a bit of a civil service uproar when it held that a certain group of administrative law judges were “inferior officers of the United States.” That meant that each had to be appointed by a Senate-confirmed Presidential appointee to comport with the US Constitution and, thereby, to legally perform their duties.  Lucia v. SEC, 138 S. Ct. 2044 (2018).

You see, the Constitution sets up several categories of Federal civil servants. By far, most people who work for the government are simply “employees” hired by whoever the agency identifies to be the selecting official, and appointed to fill a vacant position. However, there’s another much smaller group of employees who are considered to be “inferior officers of the United States” because they exercise significant authority on behalf of the government. Those individuals –  those inferior officers – must be appointed subject to the Appointments Clause of the Constitution. To comport with the Appointments Clause, the individual must be appointed (i.e., hired) by the President or by someone appointed by the President who has been confirmed by the Senate (such as the agency head). A regular old selecting official at an agency does not have the authority to appointment someone to an “inferior officer” position. (The third group of appointees in the executive branch, not at issue here, are the “Principal Officers,” also known as “non-inferior” officers. Those individuals are appointed only by the President with confirmation by the Senate.)

In Lucia, unfortunately for the SEC, the ALJs at issue there had been appointed without consideration for the appointments clause. When the Court concluded that those SEC ALJs were “inferior officers” rather than just regular old Federal employees, the validity of the decisions that those ALJs had been issuing were called into question. You don’t have to understand what an SEC ALJ does to appreciate from a civil service adjudication aspect what a nightmare Lucia has caused.

Well, it didn’t take long for some smarty-pants agency practitioners to think, “Hey! administrative law judge (ALJ) sounds a lot like administrative judge (AJ). If SEC ALJs have no authority to issue decisions because their appointments don’t comply with the Appointments Clause, then the same must be true for MSPB AJs.” And off they went to object to any appeal filed with the Board subsequent to Lucia, thereby causing roughly 200 Board appeals to be blocked. As there have not been any Presidentially appointed Board members at MSPB for several years, there has been no resolution of these objections. That means that a couple of hundred appellants have nowhere to go with their appeals until we get a functioning Board again, which will happen after President Biden names his nominees and they get confirmed by the Senate.

Obviously, this is a big deal for the entire civil service. Will all the decisions issued by all the MSPB AJs be mooted out once the Justices on the Supreme Court eventually rule on this issue? What about the AJs over at EEOC; are they in the same category? To test your potential to be a Supreme Court Justice, let’s go through the criteria for identifying a position as an “inferior officer” and see what you come up with.

The Appointments Clause of Article II of the Constitution reads as follows:

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” U. S. Const., Art. II, § 2, cl. 2.

Early Supreme Court cases that wrestled with this article concluded that inferior officers of the Federal government exercise “significant authority pursuant to the laws of the United States.” In later cases, the Court reasoned that individuals who are either principal or inferior officers subject to the Appointments Clause “hold a continuing office established by law” and exercise “significant discretion when carrying out ‘important functions.’”

Here are some functions the courts have concluded suggest that work being done is an important function requiring significant authority and discretion:

• Taking testimony at hearings
• Receiving evidence and examining witnesses
• Administering oaths, ruling on motions, and generally regulating the course of a hearing
• Ruling on the admissibility of evidence, thereby shaping the administrative record

Wow, that’s starting to sound a lot like what an MSPB AJ does. If I were arguing that Board AJs are “officers” of the government that had to be appointed personally by the Chairman of MSPB, I’d rely on a lot of these facts to support my argument.

However, to my read, the whole argument that Board AJs are subject to the appointments clause of the Constitution falls apart when I see that it is the independence of this “significant” authority that has caused the courts to find similar hearing adjudicators to be officers of the government. MSPB administrative judges do not act independent of supervision when adjudicating appeals. They have no guarantee of independent decision-making in law. 5 USC 1205 states that the power to hear and adjudicate appeals within MSPB’s jurisdiction rests in the Merit Systems Protection Board. The Merit Systems Protection Board is defined at 5 USC 1201 as the three Board members appointed by the President with the consent of the Senate. Once appointed, the Board can designate employees to administer oaths, examine witnesses, and receive evidence (5 USC 1201(b)(1)), but nothing in law allows the Board to designate employees as the final arbiter of appeals within MSPB’s jurisdiction.

Relatedly, the Board can appoint by law two categories of individuals to perform these designated functions: “administrative law judges” and “employees.” There must be a meaningful distinction between the two categories or the statute would not have bothered to identify them separately. Courts that have dealt with questions regarding the applicability of the Appointments Clause  to adjudicatory positions have found that individuals occupying “administrative law judge” positions to be exercising “significant independent authority.” Most likely, those individuals identified simply as “employees” do not have equivalent independent authority even though they may be performing functions that appear to be similar.

AJs have no more authority to act than the authority they are delegated by their supervisors. Supervisors of AJs get the authority to delegate authority as it is delegated to them pursuant to statute by the Board members. AJs issue “Initial Decisions,” subject to challenge by either party or simply to unilateral reopening by the Board members themselves. In my opinion, MSPB AJs do important difficult work and are deserving of all the respect that we can give them. However, it seems to me that they are technically below the “significant authority” requirement necessary for the Appointments Clause to be applicable to them. My guess would be that we can continue to rely on their decisions being valid even though they were not hired personally by the Board Chairman. Wiley@FELTG.com