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Complex appointments clause challenges throw some MSPB cases in limbo

February 19, 2021

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For agencies with administrative judges, a 2018 Supreme Court case has created a messy, albeit solvable, situation in recent years.

In Lucia v. Securities and Exchange Commission, the Supreme Court determined administrative law judges at the agency were “officers of the United States,” exercised “significant authority,” and, therefore, were subject to the appointments clause of the U.S. Constitution.

Dan Meyer, a managing partner with Tully Rinckey law firm, said he’s seen more agencies proactively raise Lucia challenges before MSPB administrative judges in the last two years. He said larger agencies with well-established, tenured legal staffs tend to raise the challenges.

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