How Mike Huckabee and Robert Bork Could Help Center Neil Gorsuch

SHERRY F. COLB

Cornell law professor Sherry F. Colb analyzes an unusual comment by former Arkansas Governor Mike Huckabee that a government restriction on the size of people’s Thanksgiving gathering would violate the Fourth Amendment’s guarantee against unreasonable searches and seizures. Colb describes a similar statement (in a different context) by conservative Supreme Court nominee Robert H. Bork during his (unsuccessful) confirmation hearings in 1987 and observes from that pattern a possibility that even as unenumerated rights are eroded, the Court might be creative in identifying a source of privacy rights elsewhere in the Constitution.

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Esparraguera v. Department of the Army

Docket: 19-2293

Opinion Date: December 4, 2020

Judge: Sharon Prost

Areas of Law: Civil Procedure, Government & Administrative Law, Labor & Employment Law

Esparraguera was removed for performance reasons from her position as the Army’s top labor lawyer and placed into another high-level position at the same agency but outside the Senior Executive Service (SES). Federal civil service is divided into the competitive service, the excepted service, and the SES, 5 U.S.C. 2101a, 2102, 2103. . Esparraguera’s request for reconsideration was denied by the Under Secretary. She requested an informal hearing under 5 U.S.C. 3592(a)(2), which entitled her to “appear and present arguments” before an official designated by the Merit Systems Protection Board. By statute, she could not avail herself of the ordinary appellate provisions of the Board. Esparraguera submitted exhibits designated A through UU into evidence and read a prepared statement into the record. The Army neither presented evidence nor objected to the entry of these exhibits. Esparraguera did not expressly ask the Board to review her removal—and it did not. The Board official issued the Order Referring Record, which summarized the proceedings. The Army did not change its decision. Esparraguera argued that she was deprived of constitutionally protected property and liberty interests without due process. The Federal Circuit dismissed her appeal. An “Order Referring Record” is not a “final order or decision” of the Board, as required for appellate jurisdiction.