Labor & Employment Law Daily Wrap Up, DISCHARGE—S.D.N.Y.: Maurene Comey’s removal from AUSA position was unlawful, (Oct 27, 2026)

By Kathleen Kapusta, J.D.

“Defendants’ argument that Article II bars Congress from regulating the removal of AUSAs flies in the face of nearly two centuries of Supreme Court precedent, rooted in the text of the appointments Clause, holding that Congress may generally restrict the removal of ‘inferior officers.’”

Maurene Comey’s removal from her role as Assistant United States Attorney (AUSA) in the criminal division of the U.S. Attorney’s Office for the Southern District of New York was unlawful, a federal court in New York ruled, finding Comey was entitled to judgment as a matter of law on her central claims that she was terminated in violation of the constitutional separation of powers and federal law. Accordingly, the court granted her retroactive reinstatement and back pay effective from the date of her termination through the date she accepted a different job. The court reserved judgment on her First Amendment claim pending supplemental briefing from the parties (Comey v. U.S. Department of Justice, No. 25-CV-7625 (JMF) (S.D.N.Y. Oct. 26, 2026)).

For 10 years, Comey served as an AUSA in the Southern District of New York where she worked on high-profile cases, including those involving Jeffrey Epstein, Ghislaine Maxwell, Sean “Diddy” Combs, and Senator Robert Menendez. She also earned promotions and countless other accolades, including “outstanding” ratings in regular annual reviews.

Termination memorandum. On July 15, 2025, the Co-Chiefs of the Public Corruption Unit asked her to join the trial team for another major case. The next day, however, she received an email from the HR director in DOJ’s Justice Management Division with an attached memorandum signed by the Director of EOUSA stating that “Pursuant to Article II of the United States Constitution and the laws of the United States, your employment with the Department of Justice is hereby terminated, and you are removed from federal service effective immediately.”

Shortly thereafter, OPM issued Comey a Standard Form 50 (SF-50), “Notification of Personnel Action,” listing as the sole “Legal Authority” for her removal “ART II CONSTITUTION.” Before receiving the termination memorandum, Comey had not received any notice or reason for the termination decision and was provided with no opportunity to respond. Further, neither the memorandum nor the SF-50 asserted that her removal was for cause or mentioned the Attorney General. In their answer filed more than 10 months after her termination, the government stated for the first time that the DOJ, through then-Attorney General Pam Bondi, directed Comey’s removal, which was later ratified by Todd Blanche when he was Acting Attorney General.

Lawsuit. Claiming she was fired “because her father is former FBI Director James B. Comey, or because of her perceived political affiliation and beliefs, or both,” Comey sued the government asserting 10 claims based on statutory and constitutional violations. The defendants moved to dismiss and the court, denying their motion, found the case “does not fall within the purview of the CSRA’s scheme because she was fired pursuant to Article II of the Constitution, not pursuant to the CSRA itself.” Both parties then moved for judgment on the pleadings.

Statutory claims. Addressing first Comey’s claims alleging her removal violated various statutes, the court noted that the government argued it could remove her at will pursuant to 28 U.S.C. § 542(a)Section 542(b), a 1966 statute that provides that “[e]ach assistant United States attorney is subject to removal by the Attorney General.” It further argued that even if the Civil Service Reform Act (CSRA) governed her termination, the Attorney General’s action constituted an implicit determination that she was removed “for such cause as will promote the efficiency of the service,” which is a basis for removal under the CSRA.

Section 542(b). While the government argued that nothing in the one-sentence-long Section 542(b) “imposes a ‘for cause’ requirement—or any other limitation—on the Attorney General’s authority to remove an AUSA,” this, said the court, ignores the plain language of the CSRA, which was enacted and amended after Section 542. Further, the government conceded that AUSAs such as Comey fall comfortably within “the definition of ‘employee’ subject to the CSRA.” Thus, the court observed, while Section 542(b) grants the Attorney General authority to remove an AUSA, the CSRA limits how and when the Attorney General may do so and, most relevant here, the Attorney General may remove an AUSA in Comey’s position only “for such cause as will promote the efficiency of the service.”

The government did not dispute that the CSRA applies to DOJ and generally covers AUSAs like Comey. It argued, however, that the CSRA applies only “[i]f the Attorney General does not direct the removal of an AUSA or the AUSA is provided a reason for their termination.” But every AUSA who is removed from office is removed pursuant to the authority granted to the Attorney General by Section 542(b), said the court, and thus the “category of AUSAs who are removed from service, but not at the direction of the Attorney General, is a null set.”

Nor was the court persuaded by the government’s argument “that the specific governs the general” as that cannon of statutory construction applies only “where two statutes conflict,” which was not the case here. “In any event,” the court observed, “even if there were a conflict, it is the CSRA that would control, as it governs the removal of AUSAs—which is ‘the matter under consideration,’ id.—with significantly greater specificity than does Section 542(b).” Section 542(b) identifies only who may remove an AUSA and the CSRA, by contrast, establishes a “comprehensive system for reviewing personnel action taken against federal employees.”

In finding that Section 542(b) does not override the CSRA’s for-cause and due process protections and does not permit the Attorney General to remove an AUSA such as Comey at will, the court explained that “Section 542(b) did not give Bondi authority to act in the first instance; nor did it give Blanche authority to ratify her act after the fact.”

CSRA. Turning to the government’s argument that even if Comey was protected by the CSRA, the Attorney General’s decision to remove her constituted an implicit determination that her removal was for “such cause as will promote the efficiency of the service” and, thus, was permitted by the statute, the court found this bordered on the frivolous. Not only was it at odds with longstanding judicial interpretation of Section 7513(a), which holds that an agency must demonstrate a “nexus between the employee’s misconduct and the work of the agency” to satisfy the efficiency-of-the-service standard, but also it was undisputed Comey’s performance as an AUSA was outstanding. That concession by the government, said the court, was fatal to its argument that her removal was lawful under the CSRA.

Article II. Because Comey’s removal was not authorized by any statute, the court turned to the government’s contention her removal was authorized by the Attorney General’s powers under Article II of the Constitution and that the CSRA, to the extent it constrains those powers, is unconstitutional. Because the parties agreed that AUSAs, rather than being primary officers, are either employees or inferior officers, the court proceeded on the assumption that Comey—although concededly an “employee” within the meaning of the CSRA—was an “inferior Officer” within the meaning of Article II.

After surveying Supreme Court precedent, the court observed that “for nearly two centuries, the Supreme Court has recognized that Congress may, consistent with Article II of the Constitution, regulate and limit the removal of inferior officers.” In fact, said the court, “the Supreme Court has never in its history found unconstitutional a congressionally imposed restriction on the removal of an inferior officer who answers, as AUSAs do, to a principal officer removable by the President at will.”

For its part, the government argued that the holdings of these cases have been abrogated, “if not overruled,” by more recent rulings of the Supreme Court in Trump v. United States and Trump v. Slaughter, at least as applied to “criminal AUSAs who are appearing in court.” AUSAs who represent the United States in criminal cases in court, the government asserted, exercise prosecutorial and investigatory functions that fall squarely within the President’s “conclusive and preclusive” powers and the heads of departments appointed by the President must have the power to remove such AUSAs for any reason or no reason at all pursuant to Article II “to fulfill [the President’s] constitutional obligation to take care that the laws be faithfully executed.”

Trump v. Slaughter. But even if it were free to ignore two centuries of Supreme Court precedent, the court found that neither Trump v. Slaughter nor Trump v. United States supported the government’s sweeping and unprecedented theory of executive authority. While the Supreme Court, in Slaughter, overruled Humphrey’s Executor v. United States, which had been understood to hold that Congress could create “expert agencies led by a group of principal officers removable by the President only for good cause,” the decision had nothing to say about inferior officers. Moreover, Justice Gorsuch, in a concurring opinion, observed that Sections 7511 through 7513 of the CSRA “afford rank-and-file agency employees considerable protection against removal,” and gave no sign that the Court’s decision called that into constitutional doubt.

Trump v United States. In Trump v. United States, which was about presidential immunity from criminal prosecution, the Court observed that in certain domains where the President’s authority stems from the Constitution itself, his authority is “‘conclusive and preclusive.’” In those domains, the President “may act even when the measures he takes are ‘incompatible with the expressed or implied will of Congress’” because his “exclusive constitutional authority... ‘disabl[es] the Congress from acting upon the subject.’” Among those domains, the Court continued, is the “investigation and prosecution of crimes.”

Pointing to this language, the government argued that AUSAs involved in criminal cases “are exercising core executive power under Article II,” which means that they must be removable at-will. Declining to read the language as broadly as the government, the court noted that the principal focus of the opinion’s analysis of “conclusive and preclusive” power was on actions of the President himself. Further, said the court here, “nowhere in the Trump v. United States opinion did the Supreme Court suggest, let alone hold, that it was overruling two centuries of jurisprudence regarding Congress’s authority to restrict the removal of inferior officers.”

At most, said the court, the language in Trump v. United States “should be read to mean that Congress may not regulate the removal of an Executive Branch official at the behest of the President himself and may not interfere directly with investigative and prosecutorial decisionmaking. So understood, the case has no relevance to the propriety of Comey’s removal in this case.”

Remedies. Finding Comey’s removal pursuant to Article II of the United States Constitution and the laws of the United States unlawful, the court granted her retroactive reinstatement and backpay effective from the date of her termination through the date she accepted a new job, which she now holds. It also granted her request for a declaration that the government violated the separation of powers (and, relatedly, that their reliance on Article II as a removal authority was invalid), violated the APA, and violated her Fifth Amendment due process and statutory rights.

First Amendment claim. After disposing of several other claims, the court noted that her First Amendment claim was “likely to raise thorny constitutional issues even apart from the merits, such as executive privilege.” Accordingly, it reserved judgment on this claim pending supplemental briefing from the parties.

The case is No. 250-CV-7625 (JMF).

Judge: Furman, J.

Attorneys: Deepa Vanamali (Clarick Gueron Reisbaum) for Maurene Comey. Karen Folster Lesperance, Office of U.S. Attorney, for U.S. Department of Justice.

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