In an opinion yesterday, Judge Furman allowed former AUSA Maurene Comey to pursue her wrongful termination claims in federal court, denying DOJ’s argument that the claim belonged exclusively before the MSRB. Comey’s main allegation is that she was fired because her father is former FBI Director James Comey, a political foe of President Trump. Comey was told that she was being fired under Article II of the Constitution, without further explanation.

Judge Furman ruled that the governing statute does not channel all disputes over civil servant firings before the MSRB but only those “taken ‘for such cause as will promote the efficiency of the service.’” 5 U.S.C. § 7701(a). Comey “was not removed ‘for such cause as will promote the efficiency of the service,’” but, “[i]nstead, Defendants cited one and only one reason for her removal: Article II of the Constitution.”

Judge Furman noted that this result may or may not be consistent with the underlying Congressional purpose to create uniformity for personnel actions. But, he added, this “gap” may be explained by the fact that Article II firings were not, until recently, “a thing”: