In an opinion yesterday, Judge Furman allowed former AUSA Maurene Comey to pursue her wrongful termination claims in federal court, denying DOJ’s argument that the claim belonged exclusively before the MSRB. Comey’s main allegation is that she was fired because her father is former FBI Director James Comey, a political foe of President Trump. Comey was told that she was being fired under Article II of the Constitution, without further explanation.
Judge Furman ruled that the governing statute does not channel all disputes over civil servant firings before the MSRB but only those “taken ‘for such cause as will promote the efficiency of the service.’” 5 U.S.C. § 7701(a). Comey “was not removed ‘for such cause as will promote the efficiency of the service,’” but, “[i]nstead, Defendants cited one and only one reason for her removal: Article II of the Constitution.”
Judge Furman noted that this result may or may not be consistent with the underlying Congressional purpose to create uniformity for personnel actions. But, he added, this “gap” may be explained by the fact that Article II firings were not, until recently, “a thing”:
[T]here is an apparent explanation for any gap between the Court’s conclusion here and congressional purpose: As far as the Court can tell, when enacting the CSRA, Congress did not consider “Article II removals” of career civil servants because they were not a thing. The parties do not cite, and the Court has not found, any instance between the 1883 enactment of the Pendleton Civil Service Reform Act and the 1978 enactment of the CSRA in which the Executive Branch invoked standalone “Article II” authority to remove a career civil servant.
Instead, the general understanding appears to have been that Congress could “limit and restrict the power of [such] removals as it deems best for the public interest.” United States v. Perkins, 116 U.S. 483, 485 (1886); see also, e.g., Bartenwerfer v. Buckley, 598 U.S. 69, 80 (2023) (“This Court generally assumes that, when Congress enacts statutes, it is aware of this Court’s relevant precedents”). Had Congress anticipated the rise of such removals, it may well have thought twice before committing review of them to the MSPB, an Executive Branch agency with questionable competence to adjudicate a dispute with substantial constitutional stakes.