Feds that Trump fired without cause can take their appeals directly to federal court, judges say

Federal employees fired without a stated cause can challenge that decision directly in federal court without first going to a separate panel designed for civil servants, two judges have ruled in decisions with potentially broad reaching impacts on the Trump administration’s efforts to more quickly dismiss certain workers. 

Maurene Comey, a former career attorney in the Justice Department and the daughter of former FBI Director James Comey, won the initial decision on Tuesday in a case in which she is appealing her termination last year. Comey has suggested her firing was the direct result of her connection to her father, a longstanding target of President Trump who is also facing prosecution from the administration, or her perceived political beliefs. In a separate case earlier this month, a judge ruled his court was the proper forum for Mary Comans, a former Federal Emergency Management Agency official, to challenge her dismissal. 

Comey and Comans are among a slew of employees who the Trump administration has dismissed with no stated reason, instead justifying them by arguing the moves were within the president’s scope of authority. Their termination notices suggested the actions were taken “pursuant to Article II of the Constitution and laws of the United States.”

Justice has taken a particularly aggressive approach in dismissing career staff, beginning just hours after Trump took the oath of office when it fired personnel in the Executive Office of Immigration Review and elsewhere. It has continued to remove employees, including both Senior Executive Service staff and standard civil servants, without cause. 

In Comey’s case, New York-based U.S. District Judge Jesse Furman dismissed the administration’s argument that she must take her case to the Merit Systems Protection Board as most federal workers must under the 1978 Civil Service Reform Act. 

“The Court concludes that Comey’s 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,” Furman said. “Defendants’ sole reliance on the Constitution — rather than the removal provisions of the CSRA — places Comey’s case outside the universe of cases that Congress intended the MSPB to resolve.”

Trump has fired MSPB’s Democratic head, Cathy Harris, who is now challenging that dismissal before the Supreme Court. The board’s two remaining Republican members recently ruled that some federal employees fired using the Article II justification will no longer have appeal rights before MSPB. 

The administration is asserting the employees it has fired are inferior officers under the Constitution and the president therefore has full control over their appointment and removal. Some legal observers have suggested Justice and other agencies are looking to broaden the population of employees it can fire on an at-will basis. The Trump administration has separately created a new classification of federal employees called Schedule Policy/Career, estimating it would allow agencies to fire around 50,000 workers in policy-setting roles at will.

In Comans case, the former FEMA chief financial officer fired after the administration alleged she misused federal dollars when authorizing funds to house migrants in hotels, Virginia-based District Judge Michael Nachmanoff said the terms of the dismissal made federal court the “mandatory” forum for a challenge. Nachmanoff similarly found that because FEMA circumvented civil service law in firing Comans, MSPB was not an appropriate place for her to challenge the decision. The judge dismissed her request for back pay and monetary damages, however. 

The judge in neither Comans nor Comey’s cases has yet ruled on the merits of their appeals, which center on the administration improperly side-stepping due process requirements and unlawfully targeting them for political reasons. 

Federal workers are typically not considered at-will and current statute requires that agencies provide notice, cause and an opportunity to rebut allegations before a firing can take place. Civil service protections date back more than a century and were most recently solidified in the CSRA. They have taken shape to prevent presidents from interfering with a career workforce of experts for political reasons. Good government advocates have long argued that undermining those protections could return the U.S. government to a spoils system in which political patronage threatens agencies’ capacity to deliver on their missions.

Comey’s initial victory in court came on Tuesday, the same day Justice again brought charges against her father over a social media post it said was threatening the president. 

Clarick Gueron Reisbaum, the firm representing Comey, celebrated the judge’s decision.

“No president can ignore the Constitution, the Bill of Rights, and federal law to fire a career federal employee based solely on her last name,” the firm said. “We look forward to continuing to vindicate Ms. Comey's constitutional rights and protect our civil service.”