Judge Rejects DOJ's Article II Firing Theory in Maurene Comey Case: What It Means for Federal Employees
A federal judge has ruled that the Justice Department unlawfully fired former federal prosecutor Maurene Comey, and in doing so rejected the government's argument that Article II of the Constitution lets an agency head fire a career employee for any reason, regardless of civil service law. The decision in Comey v. U.S. Department of Justice, No. 25-CV-7625 (S.D.N.Y. Oct. 26, 2026), does not create new rights for federal employees. What it does is confirm that the protections covered employees already have survive the Article II firing theory the administration has relied on across the federal workforce.
How Maurene Comey Was Fired
According to the court's 55-page opinion, Comey was removed by an email sent at 4:57 p.m., with no notice, no reason, and no opportunity to respond. The legal authority listed on her SF-50 was simply "Art. II Constitution."
The Government's Article II Argument
The Supreme Court has held that a president may remove certain top officials at will. The Justice Department argued that this power reaches much further: that Article II allows the Attorney General to fire a career prosecutor for any reason, notwithstanding the civil service statutes Congress has passed.
Why the Court Rejected It
The court relied on more than a century of Supreme Court precedent. Since United States v. Perkins, 116 U.S. 483 (1886), the Supreme Court has allowed Congress to limit how a department head removes the officers under her, so long as that department head remains answerable to the President. The Attorney General is. The court also noted that the Justice Department conceded it had taken the opposite position since at least 1983.
The court went further. It reasoned that, at most, Article II could cover a removal by the President personally, and that even that question remains open. The Justice Department said the Attorney General fired Comey, not the President. The opinion also cited Ex parte Hennen, 38 U.S. (13 Pet.) 230 (1839), an early decision addressing removal of officers appointed by a department head.
What the Ruling Means for Federal Employees
For federal employees, the significance is reassurance rather than new rights. Employees covered by the adverse action provisions of the civil service law, 5 U.S.C. § 7513, are generally entitled to advance notice, a chance to reply, and an appeal to the Merit Systems Protection Board when facing a removal. This ruling holds that an agency cannot simply sidestep those protections by citing Article II.
The decision is not final. The Justice Department has said it will appeal, and the outcome on appeal could change the picture.
If Your Removal Cited Article II
If you were removed by a notice or SF-50 that listed Article II, or no reason at all, as the legal authority, keep a copy of every document you received, note the dates, and get advice quickly. Appeal deadlines in federal employment are short and are not paused while other cases work through the courts.
Legal Disclaimer: This content is for general informational purposes only and does not constitute legal advice. Federal employment situations are fact-specific and time-sensitive. Please consult a qualified federal employment attorney about your specific situation. You can contact Southworth PC at attorneysforfederalemployees.com.