Trump administration moves to curtail appeals by fired workers

The Trump administration is aiming to quash fired federal workers’ appeals to the Merit Systems Protection Board by arguing that the independent, quasi-judicial agency must follow Justice Department guidance in how workers’ complaints are decided.

The new legal maneuver could test the independence of the board, which reviews federal employees’ appeals of personnel actions taken by the government. The administration’s argument comes after an administrative judge agreed with two fired immigration judges, who said they were not given due process in their dismissals. The administration responded that for-cause removal protections for civil service employees do not outweigh the constitutional powers of the president.

The legal arguments mark the latest effort by President Donald Trump to exert more control over independent agencies and remove protections for federal workers. The administration is now aiming to use MSPB to assert that the presidential powers in the Constitution outrank the rights to due process for workers, although MSPB has previously said it lacks the statutory authority to consider constitutional claims.

“The Trump administration’s efforts to assert control over the interpretations of the MSPB is alarming because the MSPB needs some degree of independence from the executive branch to fairly adjudicate the claims brought by federal employees,” said Nick Bednar, a law professor at the University of Minnesota Law School.

The fired workers in this case are Megan Jackler and Brandon Jaroch, who have said they were given no reason for their sudden firings on Valentine’s Day. The two disabled veterans have said they loved their jobs in civil service, got excellent performance reviews and were handling a backlog of immigration cases they had inherited before they were removed.

The Justice Department sought to remove Jackler and Jaroch because they were allegedly in a probationary period or term appointment, according to an internal memo obtained by The Washington Post. However, the two say they were appointed in 2021 and were no longer probationary employees. The memo also said that “numerous operational challenges” had “arisen” since their appointments, including a backlog of cases - an inherited problem they say they were addressing.

Jackler - a former Navy JAG attorney and special assistant U.S. attorney who has served in Afghanistan - said she was stunned by her firing, which she learned of in the middle of a hearing for a Guatemalan immigrant. She and Jaroch said their firings were confusing and disorganized. For instance, Jackler received no instructions on what would happen to her top secret clearance when she was fired.

Jaroch - a former U.S. Air Force JAG attorney and Department of Homeland Security trial attorney - had wondered if it was all a mistake and if he might get told to go back to work, but that message has never come. After Jaroch lost his salary, he took his children out of their before and after school programs and has struggled to explain to his family and others why it happened.

“The biggest thing that I just can’t, I’m not unable to overcome: the why,” he said in an interview. “Why me?”

After arguing that they shouldn’t have been fired without cause because of protections provided to civil servants, Jackler and Jaroch won their case before an administrative judge. Now, the two want to return to their jobs, but the government is appealing to the three-member board, which is currently lacking a quorum after Trump fired one board member and another retired.

“I would love to walk into my court and pick up where I left off, and lead my people and do my cases,” Jackler said in an interview. “I’d like to pick back up serving the people.”

After the judge’s decision, the case is the first since Trump’s mass firings to get this far in the appeals process. The Justice Department opinion issued Friday objects to the ruling and argues that agencies’ constitutional powers must be considered.

On Saturday, the government’s attorneys told the agency that the opinion was binding and “at a minimum, the Chief Administrative Judge’s decision must be vacated as it does not represent the legal position of the Executive Branch.”

The pair’s attorneys, Nathaniel Zelinsky and Bob Erbe, responded in a filing Monday that the argument the administration was making was “breathtaking.”

“At its core lies the theory that - regardless of the law Congress enacts pursuant to its own constitutional remit - the President possesses inherent authority to terminate career civil servants for any reason at any time,” the attorneys wrote. “That is wrong.”

The attorneys requested that MSPB prioritize this case once it has a quorum again. A Trump nominee to the board, James Woodruff II, is awaiting Senate confirmation.

“This case and others like this are about whether the president has inherent Article II power to violate landmark civil service statutes,” Zelinsky said in an interview. “For over 100 years, the Supreme Court has been clear that Congress may provide laws creating a professional civil service. No president has ever done anything like this before.”

In Trump’s efforts to exert greater control over the federal bureaucracy, the president has fired members of independent boards or commissions, including MSPB chair Cathy Harris, an appointee of President Joe Biden.

The Supreme Court has allowed the firings to stand, all but overturning 90-year-old precedent that has insulated nonpartisan agencies from political interference by the president.

Former MSPB member Raymond Limon said it was highly unusual for the administration to weigh in on ongoing employment cases - and even more unprecedented to exert influence over the independent board.

“If they’re not independent and they’re not really providing due process insofar that the president says due process is no longer required, why do you need an MSPB?” Limon said.

Michael Fallings, manager partner at law firm Tully Rinckey, said the administration’s argument could have unintended consequences if future administrations can decide to fire workers without cause.

“I think this administration is kind of forgetting that if they lose power one day, then a new administration can take over and use that same power,” Fallings said.