Nicholas J. Palmeri v. Merit Systems Protection Board

United States Court of Appeals
for the Federal Circuit
______________________
NICHOLAS J. PALMERI,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1918
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-22-0341-I-1.
______________________
Decided: January 13, 2026
______________________
J OEL J. K IRKPATRICK, Joel J Kirkpatrick PC, Canton,
MI, argued for petitioner.
K ATHERINE MICHELLE SMITH , Office of the General
Counsel, United States Merit Systems Protection Board,
Washington, DC, argued for respondent. Also represented
by ALLISON J ANE BOYLE.
______________________
Before D YK, REYNA, and CHEN, Circuit Judges.
D YK, Circuit Judge.
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PALMERI v. MSPB 2
Nicholas Palmeri petitions for review of a Merit Sys-
tems Protection Board (the “Board”) decision dismissing
his appeal for lack of jurisdiction. The Board determined
that it lacked jurisdiction because Mr. Palmeri, as an em-
ployee in the Senior Executive Service (“SES”) of the Drug
Enforcement Administration (“DEA”), was required to ap-
peal his alleged involuntary retirement only through a sys-
tem established through regulation by the Attorney
General. The Attorney General has not promulgated any
such regulations, so this avenue does not exist. We con-
clude that the Board correctly construed the relevant stat-
ute and that the Board lacked jurisdiction. Mr. Palmeri
may have a constitutional right to a posttermination hear-
ing, but any rights, if they exist, must be asserted in a dif-
ferent forum, not before the Board. We affirm.
I
Public employees with a property interest in their con-
tinued employment are generally entitled to a posttermi-
nation due process hearing to contest the termination of
their employment. Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 541–42 (1985); Gilbert v. Homar, 520 U.S.
924, 928–29 (1997); Ramirez v. Dep’t of Homeland Sec.,
975 F.3d 1342, 1349 (Fed. Cir. 2020). For most federal em-
ployees, the opportunity to appeal to the Board satisfies the
requirement for a posttermination hearing. See Rodriguez
v. Dep’t of Veterans Affs., 8 F.4th 1290, 1304–05 (Fed. Cir.
2021); Lisiecki v. Merit Sys. Prot. Bd., 769 F.2d 1558, 1564
(Fed. Cir. 1985). This case involves DEA employees in the
SES, who are treated differently than other federal em-
ployees.
In 1978, the Civil Service Reform Act (“CSRA”), Pub. L.
No. 95-454, 92 Stat. 1111, ushered in a new system “de-
signed to balance the legitimate interests of the various
categories of federal employees with the needs of sound and
efficient administration.” United States v. Fausto,
484 U.S. 439, 445 (1988). This system divided civil service
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PALMERI v. MSPB 3
employees into three main classifications: the SES, the
competitive service, and the excepted service. Id. at 441
n.1. Employees in the SES “are high-level federal employ-
ees who do not require presidential appointment but who
nonetheless exercise significant responsibility—including
directing organizational units, supervising work, and de-
termining policy—and who may be held accountable for
their projects or programs.” Esparraguera v. Dep’t of the
Army (“Esparraguera I”), 981 F.3d 1328, 1330 (Fed. Cir.
2020); see also 5 U.S.C. § 3132(a)(2)(E) (an SES position
“exercises important policy-making, policy-determining, or
other executive functions”).
Employees in the competitive service or excepted ser-
vice are entitled to appeal an enumerated list of adverse
actions to the Board, including termination. 5 U.S.C.
§§ 7511–7512, 7513(d). This includes employees in the
competitive and excepted services who work for the DEA.
Typical SES employees are entitled to the same process
most other federal employees receive when they are re-
moved from the civil service, 5 U.S.C. § 7542, including ap-
peals to the Board. 5 U.S.C. § 7543(d).
However, the CSRA specifically excluded certain agen-
cies, including the FBI and DEA, from the SES. 5 U.S.C.
§ 3132(a)(1)(B). When Title 5 refers to the “Senior Execu-
tive Service,” that term excludes any employees of the DEA
or FBI. Id.; 5 U.S.C. §§ 2101a, 3132(a)(2). In 1988, Con-
gress established an independent SES for employees of the
FBI and DEA. FBI and DEA Senior Executive Service Act,
Pub. L. No. 100-325, 102 Stat. 579. Under the current stat-
ute, these FBI-DEA SES employees are, in some respects,
subject to the same provisions as other SES employees.
Section 3151 provides for “removal or suspension con-
sistent with subsections (a), (b), and (c) of section 7543”—
those subsections refer to pretermination rights to notice
and an opportunity to meaningfully respond to a proposed
removal. 5 U.S.C. §§ 3151(a)(5)(D), 7543(a)–(c). However,
section 3151 provides that “any hearing or appeal to which
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PALMERI v. MSPB 4
a member of the FBI-DEA Senior Executive Service is en-
titled shall be held or decided pursuant to procedures es-
tablished by regulations of the Attorney General.” 5 U.S.C.
§ 3151(a)(5)(D). No such regulations have been published.
II
The relevant facts of this case are undisputed.
Mr. Palmeri began working at the DEA in 1997. In 2019,
he worked as the Assistant Special Agent in Charge of the
DEA’s New York Division, a General Schedule (“GS”)-15
position. He applied for a position in the DEA’s SES, for
which he was selected, and on March 29, 2020, he was con-
verted from the GS-15 position to the SES position. He was
not notified that this conversion to an SES position would
affect his appeal rights. On January 14, 2022, the DEA
proposed Mr. Palmeri’s removal from his SES position and
the Federal service for failure to follow instructions, lack of
candor, conduct unbecoming, and poor judgment. Before
his proposed removal became effective, Mr. Palmeri re-
tired. The day that he retired, the agency informed him
that he would have been removed had he not retired.
On April 8, 2022, Mr. Palmeri filed an appeal with the
Board alleging involuntary retirement.1 The DEA moved
to dismiss the appeal for lack of jurisdiction arguing that
the statute, 5 U.S.C. § 3151, does not provide FBI-DEA
1 Although retirement is not designated as an ap-
pealable adverse action by statute, an involuntary retire-
ment is treated as a “constructive removal[].” See
Middleton v. Dep’t of Def., 185 F.3d 1374, 1379 (Fed. Cir.
1999) (citing Mintzmyer v. Dep’t of Interior, 84 F.3d 419,
423 (Fed. Cir. 1996)). An involuntary retirement is thus
within the Board’s jurisdiction if a removal would be within
the Board’s jurisdiction. Jenkins v. Merit Sys. Prot. Bd.,
911 F.3d 1370, 1375 (Fed. Cir. 2019) (quoting Cooper
v. Dep’t of the Navy, 108 F.3d 324, 326 (Fed. Cir. 1997)).
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PALMERI v. MSPB 5
SES employees the right to appeal to the Board. After al-
lowing for written discovery and briefing, the Administra-
tive Judge (“AJ”) granted the motion to dismiss, holding
that the Board lacked jurisdiction. The full Board denied
Mr. Palmeri’s subsequent petition for review, affirmed the
initial decision, and adopted the initial decision as its final
decision. Mr. Palmeri petitions for review of the Board’s
final decision. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
III
We review a decision of the Board dismissing an appeal
for lack of jurisdiction de novo. Younies v. Merit Sys. Prot.
Bd., 662 F.3d 1215, 1218 (Fed. Cir. 2011). “The Board’s ju-
risdiction ‘is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation.’” Lee v. Merit
Sys. Prot. Bd., 857 F.3d 874, 875 (Fed. Cir. 2017) (quoting
Bennett v. Merit Sys. Prot. Bd., 635 F.3d 1215, 1218
(Fed. Cir. 2011)). The question is whether 5 U.S.C. § 7543
precludes Board jurisdiction over adverse action appeals
from DEA SES employees.
“When interpreting a statute, we begin with the text.”
Lackey v. Stinnie, 604 U.S. 192, 199 (2025). Sec-
tion 7543(d) unambiguously establishes a right to appeal
covered adverse actions to the Board, but the provision only
applies to “career appointee[s]” in “the Senior Executive
Service.” 5 U.S.C. §§ 7541, 7543(d). In this instance, the
phrase “Senior Executive Service” excludes certain agen-
cies, including the DEA. 5 U.S.C. §§ 2101a, 3132(a)(1)–(2).
Further, section 3151 empowers the Attorney General to
establish the FBI-DEA SES and “appoint, promote, and as-
sign individuals to positions established within the FBI-
DEA [SES] without regard to the provisions of this title
governing appointments and other personnel actions in the
competitive service.” 5 U.S.C. § 3151(b)(2). The plain and
unambiguous meaning of the text indicates that the FBI-
DEA SES is separate and distinct from the broader SES,
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PALMERI v. MSPB 6
and that the Board procedures for the broader SES do not
apply to the FBI-DEA SES except as provided for by stat-
ute. See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450
(2002) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340
(1997)).
Although section 3151 provides some standard SES
rights to FBI-DEA employees (such as the right to preter-
mination notice and an opportunity to respond), it does not
provide the right to a posttermination hearing or appeal to
the Board. Instead, it provides “that any hearing or appeal
to which a member of the FBI-DEA Senior Executive Ser-
vice is entitled shall be held or decided pursuant to proce-
dures established by regulations of the Attorney General.”
5 U.S.C. § 3151(a)(5)(D). This language excludes DEA SES
employees from the right to appeal adverse actions to the
Board as provided for in 5 U.S.C. § 7543.2 Instead, these
employees must appeal through a system established by
the Attorney General through regulation.
This carve out was not a mistake or oversight, but a
deliberate action taken in light of the specific responsibili-
ties of FBI and DEA SES employees. The stated purpose
of the 1988 amendment was “to authorize the establish-
ment of a separate and independent [SES] for the [FBI] and
the [DEA] not subject to the control of the Office of Person-
nel Management.” H.R. Rep. 100-608, at 2 (emphases
added). The FBI-DEA SES was given a different set of pro-
cedural rights “[i]n recognition of the unique nature of the
FBI and DEA missions and the need for security.” Id. at 3.
In particular, section 3151(a)(5)(D) was described as
2 Mr. Palmeri also argues that his right to appeal
was provided for by 5 C.F.R. § 752.601(c)(iii), but this pro-
vision only covers removals described by section 7452,
which excludes FBI-DEA SES employees. See 5 C.F.R.
§ 752.601(a); 5 U.S.C. §§ 2101a, 3132(a)(1)–(2), 7541(1),
7542–7543.
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PALMERI v. MSPB 7
providing that “[i]n lieu of any hearing or appeal which
might be available outside the agency to an individual in
the government-wide SES, the Attorney General’s regula-
tions shall provide for an alternative hearing or appeal.
This provision is intended to ensure basic due process to
members of the FBI-DEA SES while not undermining the
need for confidentiality within these agencies.” Id. at 6; see
also Hearing Before the Subcomm. on Civil Service on
H.R. 4083 and H.R. 4318, 100th Cong. 3 (1988) (testimony
of John D. Glover, FBI Executive Assistant Director) (de-
scribing the 1988 legislation as “excepting our agencies
from review by the [Board] while maintaining personnel
safeguards.”).
Because Mr. Palmeri is a DEA SES employee, he lacks
appeal rights to the Board. Instead, his appeal must be
heard, if at all, pursuant to regulations promulgated by the
Attorney General. The problem is that in the decades since
the 1988 legislation, these regulations have yet to be prom-
ulgated for reasons unknown. Mr. Palmeri argues that be-
cause he was not informed that he would lose his appeal
rights when he joined the DEA SES, he should retain his
original appeal rights. However, this argument is fore-
closed by our precedent. Williams v. Merit Sys. Prot. Bd.,
892 F.3d 1156, 1158 (Fed. Cir. 2018) (“[A]n agency’s failure
to advise federal employees on the terms of their appoint-
ment ‘does not create appeal rights for positions as to which
Congress has not given Board appellate jurisdiction.’”
(quoting Carrow v. Merit Sys. Prot. Bd., 626 F.3d 1348,
1353 (Fed. Cir. 2010))).
Mr. Palmeri also argues that the failure to issue the
regulations denied him due process and, in the absence of
those regulations, he should be provided the appellate pro-
cedure afforded to employees in the general SES. We can-
not agree. Congress clearly intended to exclude DEA SES
employees like Mr. Palmeri from the scope of the Board’s
jurisdiction because it determined that the process given to
other SES employees was unsuitable for these employees.
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PALMERI v. MSPB 8
It would contradict both the language of the statute and
the congressional purpose to apply the standard SES pro-
visions to DEA SES employees. Even if Mr. Palmeri had a
constitutional right to a posttermination hearing—an issue
we need not decide—there is no constitutional right to have
a hearing before the Board. As we have said in a related
context, “we could not, as a reasonable remedy, expand the
Board’s limited jurisdiction where Congress foreclosed re-
view.” Esparraguera I, 981 F.3d at 1336.
Nor does the Board have jurisdiction to consider a con-
stitutional claim asserting the denial of appeal rights is a
due process violation. See id. (holding that when the Board
lacked jurisdiction over an appeal of adverse employment
action, it lacked jurisdiction to hear a related due process
claim).
Our decision does not leave Mr. Palmeri without a rem-
edy. If Mr. Palmeri wishes to compel the Attorney General
to promulgate the necessary regulations, he may petition
for rulemaking. See 5 U.S.C. § 553(e). If he wishes to as-
sert constitutional claims, he may proceed in district court.
See generally Esparraguera v. Dep’t of Army, 101 F.4th 28
(D.C. Cir. 2024) (after having Board appeal dismissed for
lack of jurisdiction, employee brought due process claim in
district court); McCabe v. Barr, 490 F. Supp. 3d 198
(D.D.C. 2020) (FBI SES employee brought due process
claim in district court).
We have considered Mr. Palmeri’s remaining argu-
ments and find them unpersuasive.
AFFIRMED
COSTS
No costs.
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