The Latest on My Litigation Against DOJ

A status conference brought progress toward accountability, but also new DOJ shenanigans. I have thoughts and feelings to share about all of it.

As many of you know, I am litigating against the Department of Justice on two fronts: one is the FOIA lawsuit I wrote about last week; the other is the appeal of my termination through the Merit Systems Protection Board (MSPB), an administrative agency tasked with enforcing federal civil service protections. The MSPB appeal should be a slam dunk, because my firing blatantly violated the civil service laws in a laundry list of ways. In ordinary times, the MSPB would adjudicate my case promptly, and I would be reinstated with backpay.

But this is no ordinary times. The current Administration is actively working to sabotage the legal process in place to protect federal workers—including by firing the Chair of the MSPB (thereby depriving the Board of the quorum it needs to operate) and launching a coordinated assault on a century-old system of laws and precedent. The Department of Justice, playing its part, has gone to extraordinary lengths to obstruct and delay the adjudication of my case (and others) while this existential attack on the career workforce plays out across government. The DOJ lawyers handling my case have sought stays and delays and consolidations, all with the goal of stalling any progress toward a resolution in my favor.

Late last week, the wheels of justice finally began to turn. A status conference was held before Chief Administrative Judge Joel T. Alexander. The forum was less than ideal: an old-school telephone conference, with a dial-in phone number and no video. But even so, it felt like a measure of progress. The judge was knowledgable, engaged, and energetic, and appeared to want to get things moving. The takeaways fit roughly into three categories: the good, the bad, and the ugly. I’ll take you through the highlights of each.

The Good: “The agency’s motion to stay pending deadlines is DENIED.”

The big win from my perspective is that Judge Alexander denied DOJ’s motion to keep the proceedings indefinitely stayed. Over the objection of DOJ’s lawyers, the judge ordered the parties to begin producing discovery. This means that DOJ will finally have to produce documents and answer questions about my firing.

For months, DOJ has sought to avoid providing any explanation for my firing. They dodged my FOIA requests, then moved for an indefinite stay of discovery in the MSPB matter. They objected again in the status conference, but when the judge asked for their reasoning, they had nothing coherent to offer. Hence, the motion to stay was denied, and discovery was ordered to begin within 30 days.

This might sound like a small thing. In normal times, a standard discovery order would be unremarkable. But after so many months of stonewalling and silence from DOJ, it felt like meaningful progress. Almost three months after my firing, I have still received no explanation for it. Deputy Attorney General Todd Blanche—who signed my termination letter—has publicly accused me of lying about the events leading up to my termination, but has never offered any alternative explanation. Now, he will finally have to do that.

This feels like a first step toward accountability.

Though this is not addressed in the written order, on the call, Judge Alexander reiterated that he intends to develop a complete factual record and to conduct a hearing. That shouldn’t have ever been in doubt; I have requested and am entitled to discovery and a hearing. Nevertheless, it felt like a relief to hear the judge acknowledge that he intends to give me the process to which I am legally entitled.

The Bad: DOJ is still playing games

Despite the judge’s stated intention to move the proceedings forward, DOJ requested and was granted leave to brief a series of issues related to the MSPB’s authority over my case. Strikingly, DOJ is claiming that these are *not* constitutional challenges to the federal civil service statutes, although they invoke the President’s constitutional powers. The issues DOJ seeks to brief are, as described in Judge Alexander’s order, the following:

• Whether the Board has jurisdiction over this appeal.

• Whether the Board has the authority to determine if the agency must have provided minimum due process of law as set forth under Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985), and the procedures set forth under 5 U.S.C. §§ 7543 and 7701 before removing the appellant despite that action being taken pursuant to the President’s authority under Article II of the U.S. Constitution.

• Whether the agency must have provided minimum due process of law and the procedures set forth under 5 U.S.C. §§ 7543 and 7701 before removing the appellant despite that action being taken pursuant to the President’s authority under Article II of the U.S. Constitution.

Why is the Department of Justice pretending that these are not constitutional questions? Because the MSPB does not have the authority to entertain a constitutional challenge to a statute. Judge Alexander expressly noted in his order:

Insofar as this is a challenge to the constitutionality of 5 U.S.C. §§ 7543 or 7701, the Board has long recognized that administrative agencies are without authority to determine the constitutionality of statutes. Malone v. Department of Justice, 14 M.S.P.R. 403, 406 (1983).

In light of this limitation, DOJ is taking the position that it is *not* challenging the constitutionality of the statutory protections for civil servants. It is simply arguing that the President is free to *ignore* these statutory protections because they interfere with his authority under … wait for it … Article II of the Constitution. I’d welcome any thoughts from constitutional law scholars on how this logic holds up.

Also worth noting: a lawyer representing the Office of Personnel Management (OPM) was lurking silently in the background of the call, piping up only once to note that OPM will also be submitting briefing on these *non-constitutional* questions.

DOJ and OPM said that they needed nearly three months to brief these issues, which will drag this charade out until August 15. But the silver lining is that discovery will proceed in the meantime.

The Ugly

On a personal note, this was my first time participating in a judicial proceeding as a party, rather than an attorney, and boy did it feel different. As a lawyer, I’ve been well trained to lead with logic rather than emotion. But that is so much harder to do when you are fighting for your own life and livelihood. I was struck by the neutral detachment with which the other participants including my attorney discussed my plight; while appropriately calibrated for their roles, it nevertheless chafed a bit.

In some ways this feels trivial, but what stung the most was hearing two of my former DOJ colleagues advocate for the Department’s positions. Just months ago, we were on the same team. I never imagined that I would end up on the other side of the “v.” from the Department of Justice, an organization that I honorably served for years. I never considered how swiftly my career could be upended. I couldn’t help but wonder if my colleagues had stopped to consider how easily the shoe could be on the other foot.

We are all facing hard choices in this moment. I am trying hard not to judge the choices of others. So I won’t linger in my feelings.

The choice I made was to follow my convictions. It’s a path that feels longer and lonelier than I anticipated when I set out on it. But I’m in it for the journey, and I will keep you updated on how it’s going. If you’ve read to this point, I can tell you that I am truly grateful for your support along the way.

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