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An administrative judge has struck down former U.S. Trustee Linda Ekstrom Stanley’s bid to get her job back, ruling that the U.S. Merit Systems Protection Board does not have jurisdiction over the matter. Stanley, the government’s top watchdog for bankruptcy cases in much of California and Nevada for the past eight years, was summarily removed from her post in June on orders of U.S. Attorney General John Ashcroft. The following month she filed an appeal to the MSPB, the agency which handles adverse action appeals for most executive branch federal employees. In her appeal, Stanley contended that by firing her without cause, the Department of Justice improperly treated her post as a political position. The U.S. Trustees’ five-year term, she maintained, was expressly created by Congress to overlap the four-year presidential term so that the job would not be politicized. But Administrative Judge Philip Arnaudo concluded that the language of the statute creating the trustee position — as well as a 1996 order by then-Attorney General Janet Reno — clearly establish that the trustee position is of a “confidential, policy-determining, policy-making or policy-advocating character,” and is thus subject to at-will removal by the AG. As a result, ruled Arnaudo, Stanley is not entitled to appeal her termination to the MSPB. Howard Moore Jr., an Oakland attorney representing Stanley, said he believes the MSPB’s interpretation of the legislative history is incorrect. “The whole history of the creation of the trustee position was to take politics out of the functioning of the trustee’s office,” said Moore. “This puts it right back in there, because now the trustee has to do the bidding of the party that’s in power.” Moore said he would appeal the decision to the Federal Circuit U.S. Court of Appeals. Under MSPB rules, a party can appeal to either the D.C. court of appeals or a three-member MSPB panel. A separate Equal Employment Opportunity Commission proceeding is under way to address the age and gender discrimination claims in Stanley’s appeal, said Moore. He also noted a possible third prong to the case, in that he was considering filing a suit in U.S. district court on the grounds that Janet Reno’s 1996 order making the trustee a “policy-making” position breaches the separation of powers between the executive and legislative branch.

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