Is Your Career Protection as Strong as You Think?
A federal appeals court has delivered a sobering reality check to the government’s top law enforcement leaders: if you are a Senior Executive Service (SES) member at the DEA or FBI, the Merit Systems Protection Board (MSPB) cannot save you.
As reported by FEDweek, the U.S. Court of Appeals for the Federal Circuit has affirmed that DEA and FBI senior executives are statutorily excluded from appealing adverse actions—such as removal or involuntary retirement—to the MSPB. This ruling in Palmeri v. MSPB confirms a “carve-out” in the law that leaves these executives with significantly fewer due process rights than their career counterparts in other agencies.
For those in the crosshairs of agency leadership, this decision means the “court of last resort” for federal employment disputes is officially closed.
⚖️ The Ruling: A “Deliberate” Exclusion
The case centered on a former DEA senior executive who argued his retirement was involuntary—a “constructive removal.” He sought to appeal this action to the MSPB, a standard right for most career civil servants.
However, the court ruled that the FBI-DEA Senior Executive Service is a distinct legal entity separate from the general SES.
- The Statute: Under 5 U.S.C. § 3151, Congress established a unique personnel system for these agencies. While the law grants rights to “notice” and a “response,” it explicitly states that appeals must be handled “pursuant to procedures established by regulations of the Attorney General.”
- The Gap: Crucially, the court acknowledged that the Department of Justice never promulgated these regulations. Despite this decades-long administrative failure, the court held it could not “invent” jurisdiction for the MSPB where Congress had explicitly removed it.
The result? DEA and FBI executives are effectively operating without an external check on management’s power to fire or demote them.
đź“Š Sound Data: The “High-Risk” Environment
This legal vulnerability arrives at a moment when the risks for senior executives are already climbing.
1. The “Forced Distribution” Threat The Office of Personnel Management (OPM) has recently removed the ban on “forced distribution” for SES performance ratings.
- The Shift: Agencies are now encouraged to limit the number of “Outstanding” ratings to differentiate performance.
- The Danger: This creates a mathematical necessity for more executives to receive lower ratings. For an FBI or DEA executive, a “Less Than Fully Successful” rating can trigger removal—a removal you now definitely cannot appeal to an independent board.
2. The Odds Are Already Against You Even for those with MSPB rights, the board is not a guaranteed shield.
- 80% Sustain Rate: Historical data shows that in adverse action cases that go to a decision, the MSPB upholds the agency’s decision more than 80% of the time.
- 3% Win Rate: Only about 3-4% of appeals result in the employee winning full relief (reversal).
- The Takeaway: If the “best case” scenario for protected employees is a 20% chance of success, the “no appeal” scenario for DEA/FBI executives is a career death sentence.
🛡️ When You Can’t Fight, You Must Plan
If you lose your seat at the table, do you have a parachute? This court ruling makes it clear: Your tenure is only as secure as your relationship with current leadership. When that relationship sours, you need a financial exit strategy, not a legal one.
This is where Internal Benefit Advisors becomes your most valuable ally. We help you build a financial defense that doesn’t rely on a judge.
How We Protect “At-Will” Executives:
- Involuntary Retirement Analysis: If you are forced out, we calculate your immediate eligibility for Discontinued Service Retirement (DSR). This allows you to retire early with an immediate annuity if you are removed for performance (but not misconduct), bridging the gap to your full pension.
- FERS Disability Assessment: Often, “performance” issues are actually health issues exacerbated by high-stress roles. We evaluate if a Medical Retirement is a viable (and protected) exit path that bypasses the need for an MSPB appeal.
- Severance & Lump Sum Strategy: If you are separated, we help you maximize your annual leave payout and understand the tax implications of your final separation check to maintain cash flow during your transition.
The courts have spoken: You are on your own. Make sure your financial plan is ready to stand alone.
Contact Internal Benefit Advisors today for a confidential executive benefits and exit strategy review.
References
- FEDweek. “DEA, FBI Senior Execs Lack MSPB Appeal Rights, Court Affirms.” January 20, 2026.
- U.S. Court of Appeals for the Federal Circuit. Palmeri v. Merit Systems Protection Board, No. 2024-1918. January 13, 2026.
- 5 U.S.C. § 3151. The Federal Bureau of Investigation and Drug Enforcement Administration Senior Executive Service.
- Internal Benefit Advisors. Retrieved from https://internalbenefitadvisors.com
