Maurene Comey’s Firing Exposes the Limits of Thunder Basin

Assistant U.S. Attorney Maurene Comey prosecuted some of the most high-profile defendants of the 21st century: Sean “Diddy” Combs, Jeffrey Epstein, and Ghislaine Maxwell. By all accounts she was an extraordinary prosecutor. Like other career employees, assistant U.S. attorneys enjoy tenure protections that limit their removal. Nevertheless, the Department of Justice removed Comey without cause, citing only “ARTICLE II OF THE CONSTITUTION.” Given her stellar record, the most plausible explanation for her removal has nothing to do with her performance and everything to do with her father, James Comey—the former FBI director who has been in President Trump’s crosshairs since 2017. In the U.S. District Court for the Southern District of New York, Maurene Comey challenged her removal as an unlawful, politically motivated firing that violated her constitutional rights.

Ordinarily, employees must channel employment disputes through the Merit Systems Protection Board (MSPB)—the (formerly) independent agency that adjudicates disputes between federal employees and their employers. The Department of Justice filed a motion to dismiss for lack of jurisdiction, arguing that the Civil Service Reform Act (CSRA) precluded the district court from exercising jurisdiction over Comey’s claims and that she would need to channel those claims through the MSPB. On April 28, Judge Jesse Furman of the U.S. District Court for the Southern District Court of New York held that the CSRA did not preclude Comey’s claims because they fell outside the purview of the statute. Judge Furman’s order reflects broader efforts to evade the MSPB when challenging federal employment disputes.

Judge Furman’s Order in Comey v. Department of Justice

The threshold question presented in Judge Furman’s order is whether Comey may challenge her removal in federal court. Generally, Subchapter II of Chapter 75 permits “[a]n employee against whom an action is taken under this section ... to appeal to the [MSPB].” Once the MSPB has issued its final decision, the employee may appeal the order to the U.S. Court of Appeals for the Federal Circuit.

The Supreme Court has held that the CSRA requires employees to “channel” claims brought under the CSRA through the MSPB even if those claims raised constitutional issues. Its decision in Thunder Basin Coal Co v. Reich provides the doctrinal framework for understanding channeling. Under Thunder Basin, plaintiffs must channel their claims through that scheme before seeking review in federal court whenever Congress has established a comprehensive statutory-review scheme. Two questions govern this analysis: First, did Congress intend the statutory-review scheme to preclude district court jurisdiction. Second, are the plaintiff’s claims the type Congress intended to be reviewed through the statutory-review scheme.

In Axon Enterprises v. Federal Trade Commission, the Supreme Court carved out an important exception. When a plaintiff challenges the agency’s very power to act—for example, by arguing that its structure is unconstitutional—that challenge falls outside of the statutory-review scheme. Requiring a litigant to submit to the agency’s own review process makes little sense when the litigant’s argument is that the process itself is illegitimate. The Court held that district courts retain jurisdiction over these “structural” constitutional challenges, even where Congress has provided a statutory-review scheme for the agency’s decisions.

Judge Furman began his analysis by assessing whether Comey’s claims fell within the CSRA’s purview. He agreed with the general principle that district courts lack jurisdiction over adverse employment actions falling within the CSRA’s purview. Citing other Supreme Court precedent, however, Furman concluded that not all personnel actions fall within the CSRA. Section 7513(d) of Title 5 provides, “An employee against whom an action is taken under this section is entitled to appeal to the Merits Systems Protection Board.” Whether the CSRA applies to Comey’s claims hinges on two questions derived from the statutory language. First, is Comey an “employee” within the meaning of Subchapter II? No one disputes that she was. Second, did the Department of Justice take an “action under this section” (i.e., § 7513 of Subchapter II)? The dispute resides here.

Interpreting the CSRA’s plain text, Judge Furman concluded that the government did not take a personnel action covered by Subchapter II. Section 7513(a) provides that “an agency may take an action covered by this subchapter against an employee only for such cause as will promote the efficiency of the service” (emphasis added). A separate provision lists “a removal” as covered action, but the statute only covers “a removal” taken “for such cause as will promote the efficiency of the service.” The Department of Justice, however, removed Comey pursuant to Article II of the Constitution—not Subchapter II of Chapter 75. Because the MSPB may only review removals arising under the CSRA, the statutory text compels the conclusion that Congress did not intend to divest the federal courts of jurisdiction over claims arising outside of the CSRA.

In its brief, the Department of Justice argued that, “[i]f Article II removals are not covered by the CSRA, then she has no remedy.” Judge Furman rejected this argument. He concluded that Congress spoke clearly when it sought to deprive employees of the right to judicial review. Employees appointed by the president and employees within intelligence agencies, for example, are explicitly excluded from Subchapter II. Likewise, removals effectuated pursuant to a reduction in force do not qualify as “removals” for purposes of Subchapter II.

So why is the CSRA silent on the issue of Article II removals? The best explanation is that Congress never contemplated that the president had authority to remove career employees under Article II. The Supreme Court has long maintained that Congress could limit the removal of federal employees, and even the modern cases expanding authority over presidential appointees support the proposition that Congress can limit the removal of federal employees. The Office of Personnel Management’s own policies do not identify Article II as a legal authority for removal. If Congress had known that the president possessed constitutional authority to remove federal employees, it may have structured the CSRA quite differently rather than placing the adjudication of employment disputes within an executive branch agency with limited expertise over constitutional questions.

Judge Furman also found it “notabl[e]” and “ironic[]” that the executive branch shared this same interpretation of the CSRA until recently. In cases before the MSPB, the Trump administration had sought to terminate suits for lack of jurisdiction when the removal “involve[d] the President’s exercise of his inherent Article II authority, rather than the exercise of statutory authority granted in Title 5.” In these cases, the government acknowledged that, “[a]lthough Congress has granted agencies authority to remove employees pursuant to Chapter 75, the statutory authority is separate and distinct from the President’s inherent removal authority under Article II.” Even though the government’s litigation position had changed, Judge Furman concluded that the CSRA did not preclude district court review.

In addition, the government argued that even if the MSPB lacks jurisdiction over Comey’s claims, she could still petition the Office of Special Counsel to investigate her claims and, ultimately, file a complaint with the MSPB. But the Office of Special Counsel has “total and unfettered discretion” to decide whether to bring the claim to the MSPB. The availability of judicial review turns entirely on whether the Office of Special Counsel decides to exercise that discretion and bring the case to the MSPB. Accordingly, there is a strong likelihood that Comey’s claim would never be reviewed by a federal court if that is the only path available to her. Moreover, Judge Furman expressed doubt that the Office of Special Counsel would have authority over Comey’s claims because Congress intended Chapter 75 to “be the primary, if not exclusive path, for aggrieved employees covered by 5 U.S.C. § 7511(a) to challenge removals under the CSRA.” That path, however, “is not open to Comey because Congress did not include Article II removals within the scope of Chapter 75.”

Even if the CSRA’s channeling regime did reach Article II removals, Judge Furman concluded that Comey’s claims would still belong in district court. Thunder Basin directs courts to consider whether channeling would foreclose meaningful judicial review, whether the claims are collateral to the statutory scheme, and whether they fall outside the agency’s expertise. All three factors favored Comey.

The most straightforward is expertise. The MSPB adjudicates employment disputes under the CSRA—questions about whether an employee was fired for cause or whether proper procedures were followed. Comey’s claims raise a fundamentally different question: whether the president can bypass the CSRA entirely by invoking Article II. The MSPB has no special competence over the meaning of the Constitution or the separation of powers. Indeed, until recently, the MSPB had maintained that it could not hear constitutional challenges to the very statute that created it. Comey’s claims are also collateral to the CSRA’s review provisions. Like the structural challenges at issue in Axon Enterprises, they contest whether the statutory framework applies at all, rather than challenging a decision made within it. And because Chapter 75 does not cover Article II removals and the Office of Special Counsel provides no guaranteed path to judicial review, channeling would risk leaving Comey with no court to hear her constitutional claims at all.

Judge Furman’s interpretation of the CSRA and its limitations strikes me as correct. Of course, candor requires me to disclose that I assisted with an amicus brief that laid out similar arguments. Fundamentally, the MSPB cannot hear all types of removals, and it lacks authority to consider the constitutionality of the very statute that created it. The government bears the burden of proving lawful authority for the removal, and its asserted authority in this case turns entirely on a threshold Article II challenge to the CSRA itself. Requiring channeling in these circumstances would not preserve Congress’s review scheme. Instead, it would compel an employee to submit to an agency proceeding whose jurisdiction and governing statute the government contends are unconstitutional.

Broader Trends

Judge Furman’s order is part of a broader pattern of federal courts grappling with how to apply Thunder Basin as the Trump administration expands control over the MSPB—removing commissioners, temporarily breaking its quorum, and demanding adherence to the Office of Legal Counsel’s interpretation of law. Two distinct strategies have emerged for overcoming Thunder Basin.

As in Comey, the first strategy involves interpreting the CSRA to determine whether the MSPB has jurisdiction over the particular employee or claim at issue. In Comans v. Executive Office of the President, Judge Michael Nachmanoff of the U.S. District Court for the Eastern District of Virginia reached the same conclusion as Comey for members of the Senior Executive Service. Mary Comans, the chief financial officer of the Federal Emergency Management Agency, received a termination memorandum citing Article II as the sole basis for her removal. Parsing Subchapter V of Chapter 75—the provisions governing SES employees—Judge Nachmanoff identified a gap between the scope of covered actions and the MSPB’s jurisdiction. Section 7543(d) confers MSPB jurisdiction only over actions “taken under” § 7543, and § 7543(a) permits removal of SES employees only for “misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment.” A removal premised solely on Article II does not fit within those categories. Together, Comey and Comans demonstrate that the textual argument holds across different subchapters of the CSRA, reinforcing the conclusion that Congress never contemplated that the MSPB would adjudicate claims involving Article II removals of career civil servants when it enacted the statute.

The statutory text argument has an obvious limitation: It depends on the government’s choice of legal authority. Many removals of career employees will continue to fall squarely within the CSRA because agencies invoke the statute’s own removal provisions—terminating employees “for such cause as will promote the efficiency of the service” under § 7513(a). When the government relies on those statutory grounds, the MSPB retains jurisdiction. The textual argument succeeds in Comey and Comans precisely because the government disclaimed any reliance on the CSRA and cited Article II alone. If agencies begin invoking efficiency-of-the-service grounds alongside Article II—or simply revert to the statutory framework for most removals—the textual escape from MSPB channeling would be unavailable.

The second strategy leverages the MSPB’s loss of independence to argue that the statutory-review scheme no longer functions as Congress intended. This is exemplified by the U.S. Court of Appeals for the Fourth Circuit’s decision in National Association of Immigration Judges v. Owen. The court agreed that if the CSRA were “functioning as designed,” the employees’ constitutional claims would need to be channeled through the MSPB. The court took notice, however, that the president had removed the special counsel and two MSPB members, leaving the board without a quorum. The CSRA’s channeling regime, the Fourth Circuit explained, was “predicated on the existence of a functioning and independent MSPB and Special Counsel.” Congress had described the MSPB’s independence as a “cornerstone” of civil service reform, and without that independence, Congress would not have granted the Office of Personnel Management the broad authority it possesses. If the MSPB no longer functions as Congress intended, the rationale for stripping district courts of jurisdiction collapses. The Fourth Circuit vacated and remanded for the district court to evaluate whether the CSRA’s adjudicatory framework remained operational. A petition for certiorari is currently pending with the U.S. Supreme Court.

The institutional dysfunction strategy has a wider reach than the statutory text argument. Because it challenges the legitimacy of the channeling regime itself, it would encompass all employees whose claims are subject to MSPB review, including those removed under the CSRA’s own standard. An employee terminated for cause who faces a compromised adjudicator has the same interest in reaching an Article III court as an employee terminated under Article II. The strategy carries a significant risk, however. If the Supreme Court ultimately upholds the president’s authority to remove MSPB members and separately rejects the institutional-dysfunction strategy, then the argument that the MSPB no longer functions as Congress intended could become a permanent feature of the landscape rather than a temporary emergency. At that point, Congress would face a choice: accept that the MSPB can no longer serve as an independent adjudicator and open district courts to federal employment disputes, or allow the CSRA’s channeling regime to continue directing employees into an institution that lacks the structural independence Congress deemed essential to the system’s legitimacy.

Judge Furman’s order ensures that Comey’s challenge to her removal will be heard in federal court unless the government prevails on an interlocutory appeal. The merits question—whether the president may invoke Article II to remove a career civil servant without cause and without process—remains for another day. How courts answer that question will determine whether the civil service protections that Congress has maintained since 1883 survive the current administration’s theory of executive power.