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MSPB Ruling on Immigration Judges and Article II

article ii civil service protections federal employment immigration judges mspb appeals Mar 26, 2026

A recent Merit Systems Protection Board (MSPB) decision, Jackler and Jaroch v. Department of Justice, marks a significant shift in how certain federal employees may be classified—and protected. Two immigration judges were removed without notice or an opportunity to respond. Initially, an MSPB administrative judge reversed those removals, finding clear violations of due process. But on appeal, the full Board dismissed both cases entirely—not on the facts, but for lack of jurisdiction.

The key takeaway is immediate and practical: in some circumstances, the MSPB may determine it has no authority to review a removal at all. That is a fundamentally different risk than simply losing an appeal on the merits.

The Legal Framework: “Inferior Officers” Under Article II

The Board’s reasoning centers on constitutional law. It classified immigration judges as “inferior officers” under Article II—officials who exercise significant authority on behalf of the United States. Because immigration judges conduct hearings, issue subpoenas, and render decisions that can become final agency action, the Board found they fall into this category.

Under Supreme Court precedent, certain officers must remain removable at will by agency heads or the President. The MSPB concluded that applying civil service removal protections to these judges would conflict with that constitutional requirement. As a result, it held that the statutory protections under 5 U.S.C. § 7513—and the MSPB’s own jurisdiction—do not apply.

This is not a routine statutory interpretation. It is a constitutional override.

Why This Decision Is Unprecedented

The most important aspect of this ruling is not just who it affects—but how the Board reached its conclusion. For the first time, the MSPB accepted an “as-applied” constitutional challenge to civil service protections and used it to exclude an entire category of employees from its review.

That creates a framework that could be tested in future cases. While the Board emphasized that agencies cannot simply invoke Article II to bypass protections, it also outlined a pathway for doing so where an employee exercises “significant authority.”

That distinction will matter.

What This Means for Most Federal Employees

For the vast majority of federal employees, this decision does not change day-to-day protections. Most positions do not meet the constitutional definition of an “inferior officer.” Civil service rights—including notice, response opportunities, and MSPB appeal rights—remain firmly in place.

Still, the decision introduces a new layer of uncertainty. It signals that in highly specialized roles involving adjudication, policymaking, or significant discretion, agencies may attempt to argue that constitutional principles override statutory protections.

The practical takeaway is straightforward: if facing discipline in a role with elevated authority, it becomes even more important to assess not just the facts of the case, but the legal classification of the position itself.

The Federal Circuit Will Have the Final Word

The case is now on appeal to the U.S. Court of Appeals for the Federal Circuit. That court’s decision will likely determine whether this constitutional framework stands, narrows, or expands.

Until then, the most grounded approach is awareness without alarm. Understanding how these legal arguments are evolving allows federal employees to respond strategically rather than reactively.

Legal Disclaimer: The information provided in this article is for informational purposes only and should not be construed as legal advice. While I am a federal employment attorney, this post does not create an attorney-client relationship. Every situation is unique, and legal outcomes depend on specific facts and circumstances.

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