Eleventh Circuit Validates “Good-Cause” Tenure for Administrative Law Judges
A Commentary on Walmart, Inc. v. Chief ALJ (OCAHO), 24-11733 (11th Cir. 2025)

1. Introduction

In Walmart, Inc. v. King, the United States Court of Appeals for the Eleventh Circuit confronted – and ultimately rejected – a high-stakes constitutional attack on 5 U.S.C. § 7521(a), the provision that protects federal Administrative Law Judges (“ALJs”) from at-will removal. The dispute arose after Immigration and Customs Enforcement (ICE) filed 20 civil complaints against Walmart for over 11,000 alleged I-9 record-keeping violations. Hoping to short-circuit the administrative process, Walmart sued five federal officials in district court, asserting that the “good-cause” tenure enjoyed by the presiding ALJ unconstitutionally restricted the President’s Article II removal power.

The district court sided with Walmart, declared § 7521(a) unconstitutional, and permanently enjoined the Department of Justice (“DOJ”) and its Office of the Chief Administrative Hearing Officer (“OCAHO”) from adjudicating the citations. On interlocutory appeal, however, the Eleventh Circuit vacated the injunction and reversed the judgment. In a sweeping 70-page opinion by Judge Hull, the court held that:

Section 7521(a) is constitutional as applied to DOJ ALJs because they are inferior officers who exercise limited, purely adjudicatory functions subject to plenary review – and therefore do not unduly trench on the President’s duty to take care that the laws be faithfully executed.

The ruling cements a significant precedent within the Eleventh Circuit, deepens an existing circuit split with the Fifth Circuit’s decision in Jarkesy, and provides a carefully structured roadmap for assessing removal protections in other administrative contexts.

2. Summary of the Judgment

• Holding: 5 U.S.C. § 7521(a)’s requirement that agency ALJs may be removed only for “good cause” as determined by the Merit Systems Protection Board (MSPB) does not violate Article II, when applied to DOJ’s OCAHO ALJs.
• Disposition: The Eleventh Circuit vacated the district court’s permanent injunction barring the administrative proceeding and reversed the grant of summary judgment to Walmart.
• Scope: The holding is expressly “as applied” to DOJ/OCAHO ALJs, yet the opinion’s reasoning extends broadly to ALJs whose powers are limited to adjudication and whose decisions are reviewable by a principal officer.

3. Analytical Discussion

3.1 Precedents Cited and Their Influence

The panel canvassed more than a century of removal-power jurisprudence. Key precedents include:

1. Myers v. United States (1926) – Recognized the President’s default authority to remove executive officers. Distinguished here because Myers dealt with a principal officer appointed by the President, not an inferior officer appointed by a department head.
2. Humphrey’s Executor (1935) & Wiener (1958) – Upheld for-cause protections for members of multimember quasi-legislative/quasi-judicial boards. The Eleventh Circuit explained that OCAHO ALJs, unlike FTC Commissioners or War Claims Commissioners, lack policymaking power.
3. Morrison v. Olson (1988) – Allowed for-cause removal of an independent counsel who was an inferior officer with limited duties. The court analogized OCAHO ALJs to the Morrison independent counsel: limited jurisdiction, no policymaking authority, and subject to supervision.
4. Free Enterprise Fund v. PCAOB (2010) – Struck down dual for-cause protection for PCAOB members. Crucially, the Supreme Court carved out ALJs. The Eleventh Circuit heavily relied on that carve-out, distinguishing PCAOB’s “unusually high” removal standard and substantial executive power.
5. Lucia v. SEC (2018) – Labeled SEC ALJs “officers” for appointment purposes while expressly reserving the removal question. The Eleventh Circuit cited Lucia to confirm ALJs’ inferior-officer status, reinforcing Congress’s authority to regulate their tenure.
6. Seila Law (2020) & Collins (2021) – Invalidated for-cause protections for single-director financial regulators wielding significant executive power. The panel read those cases as reaffirming two narrow exceptions: (i) multi-member bodies performing quasi-legislative/-judicial functions, and (ii) inferior officers with limited, non-policymaking duties.
7. Recent Circuit Authority – The Ninth ( Decker Coal) and Tenth (Leachco) Circuits have upheld § 7521(a); the Fifth (Jarkesy) has not. The Eleventh Circuit expressly sided with the Ninth and Tenth, widening the split.

3.2 Core Legal Reasoning

1. Nature of the Officer: OCAHO ALJs are inferior officers appointed by the Attorney General under 5 U.S.C. § 3105. This places them within Congress’s power to “limit, restrict, and regulate” removal (citing Perkins).
2. Scope of Authority: ALJs perform purely adjudicatory tasks and are statutorily barred from investigation or policymaking. Their decisions lack finality because the Attorney General may vacate, modify, or adopt them de novo.
3. Presidential Control Mechanisms: Even with § 7521(a) in place, the President retains adequate control through:
   • At-will removal of the Attorney General (a principal officer).
   • Direction to the Attorney General to review or overturn ALJ decisions.
   • Ability, in limited circumstances, to invoke national-security or reduction-in-force exceptions to bypass the MSPB entirely (5 U.S.C. § 7521(b)).
4. Comparison to Free Enterprise Fund: The PCAOB featured (i) investigative and prosecutorial powers and (ii) an “unusually high” removal threshold. By contrast, ALJ removal only requires generic “good cause,” judged by an MSPB whose own status is being separately litigated.
5. Severability Safety Net: Even if § 7521(a) were defective, the court emphasized it is fully severable; the rest of the APA would function with ALJs removable at will by the agency head.

3.3 Projected Impact

• Circuit Split Deepened: The ruling clashes with the Fifth Circuit’s Jarkesy approach, increasing the likelihood of Supreme Court review.
• Strategic Litigation Check: Regulated parties within the Eleventh Circuit (e.g., employers, securities respondents, Medicare providers) may no longer succeed with pre-enforcement suits premised solely on ALJ tenure.
• Guidance for Agencies: By stressing plenary review, the decision signals that agencies wishing to preserve ALJ tenure should maintain (or re-adopt) robust internal review mechanisms by politically-accountable officers.
• Potential Spill-Over: The court’s analysis can inform challenges pending in other removal-power contexts (e.g., Social Security ALJs, NLRB judges, MSPB members themselves).

4. Complex Concepts Simplified

Inferior vs. Principal Officers

“Principal officers” (e.g., cabinet secretaries) must be appointed by the President and confirmed by the Senate; “inferior officers” (e.g., most ALJs) may, by statute, be appointed by department heads. Because Congress may choose either appointing mechanism for inferior officers, it may also impose modest tenure protections.

Dual-Layer Protection

A “two-tier” scheme exists when Officer A can only be removed for cause by Officer B, and Officer B can only be removed for cause by the President. Free Enterprise Fund struck down such a scheme for PCAOB members wielding executive powers; the Eleventh Circuit deemed the analogy inapposite for adjudicative ALJs.

Plenary Review

This means a higher officer can review everything – factual findings, legal conclusions, and remedies – and substitute her own judgment. Here, the Attorney General has that power over OCAHO ALJs.

Severability Doctrine

Courts try to excise (“sever”) only the unconstitutional piece of a statute, leaving the rest intact, unless Congress clearly would have preferred no statute at all.

5. Conclusion – Key Takeaways

The Eleventh Circuit’s decision advances a clear, functional approach to Article II removal questions:

1. When officers are inferior, perform limited adjudicatory duties, and are subject to comprehensive review by a principal officer answerable to the President, “good-cause” tenure survives constitutional scrutiny.
2. Free Enterprise Fund’s condemnation of dual for-cause protection is cabined to situations involving substantial executive power and unusually high removal barriers, not to adjudicators like ALJs.
3. Even where a removal restriction raises doubts, courts should ask whether severance – not wholesale invalidation or injunction – adequately cures the defect.
4. The ruling widens an existing inter-circuit conflict, enhancing the prospects that the Supreme Court will soon revisit § 7521(a) directly.

For administrative agencies, litigants, and scholars alike, Walmart v. King underscores that tenure protections for ALJs remain on firm constitutional footing, at least where political oversight through plenary review persists. While the Article II debate is far from over, the Eleventh Circuit has charted a doctrinally coherent, historically grounded path that other courts – and eventually the Supreme Court – will have to confront.