'Illegal actions'? Trump\u00a0tried to remove officials who could save federal workers' jobs

‘Illegal actions’? Trump\u00a0tried to remove officials who could save federal workers’ jobs

Posted by author February 28, 2025 Jobs

$‘Illegal actions’? Trump\u00a0tried to remove officials who could save federal workers’ jobs$

Spread the love

On a Monday night in early February, an aide to President Donald Trump sent off an email firing the head of a board that handles certain complaints with federal workers’ labor unions.

A few minutes later, the aide sent a nearly identical email to a member of a different board that protects federal civil service workers partisan political influence, terminating her, too, “effective immediately.”

“Thank you for your service,” White House personnel aide Trent Morse, wrote to both women.

In three and a half minutes, Trump kneecapped the two primary avenues federal workers could use to contest the labor relations issues that had been coming their way since he took office. Only three days earlier, Trump had fired the head of an office that provides the workers’ third avenue.

The fired officials, all nominated by Democrat Joe Biden and confirmed to fixed terms by the Senate, have sued Trump and his administration in an effort to be reinstated, saying their firings are illegal. Judges have temporarily reinstated two of them.

The officials run independent agencies that were designed by Congress to be the only place that federal workers can go to challenge a firing. The firings came right before Trump and Elon Musk’s Department of Government Efficiency fired thousands of probationary, early-hire status employees.

A federal judge in California on Thursday night temporarily blocked the Trump administration from ordering agencies to fire probationary employees but did not order the rehiring of anyone let go. The outcome of that case, which was brought by unions and nonprofit groups, remains to be seen, but Trump and Musk are currently planning a large-scale reduction in force that could start in two weeks.

Richard Hirn, a labor lawyer who has represented federal workers’ unions, said Trump fired all these officials in order to make it harder for federal workers to challenge their firings. In three other cases, when unions attempted to go through the courts, judges told them to go back to the proper channels.

“He’s engaging in illegal actions to deprive federal employees of the right to have their cases heard by the administrative agencies that Congress has created and designated to protect their rights,” Hirn said.

Thomas Berry, the director of constitutional studies at the conservative Cato Institute, said Trump may be attempting to hasten a trip to the Supreme Court to throw out legal precedent protecting the heads of independent agencies from presidential oversight.

Anna Kelly, the White House deputy press secretary, said in a statement: “President Trump is committed to building a team fully committed to advancing his America-First agenda.”

Why fired federal workers can’t go straight to court

A federal law that Congress passed under former President Jimmy Carter set up a complex system of boards and agencies that serve as workers’ recourse if they want to contest their firings. They can’t go straight to court and sue the government.

Carter’s law built off previous laws dating back to 1883 that created the civil service, replacing a system that allowed presidents to install their allies in government roles, regardless of their qualifications, and made it easy to fire government workers who were not loyal to the president.

The law created the Office of Special Counsel as an independent agency whose head, the Special Counsel, is nominated by the president and confirmed by the Senate to serve a set term but cannot be removed on a whim. The office is designed to be a first stop for federal employees who think they’ve been unlawfully fired, especially as a result of whistleblowing.

The Special Counsel can make requests on employees’ behalf to the Merit Systems Protection Board, the same way a prosecutor would make a case to a judge. The three-member board can then decide on whether a firing was wrongful. Presidents nominate board members to terms, and the Senate confirms them, in a similar system designed to be insulated from politics.

Permanent workers can also go directly to the Merit Systems Protection Board in order to get a decision on a wrongful firing, but probationary employees can only get there if the Office of Special Counsel represents them.

Hirn said he doesn’t see a way to get probationary employees back to work quickly without a special counsel who is willing to go to bat for them. He said other avenues would involve lengthy court fights.

If workers choose to contest problems with working conditions through their labor unions, they’ll usually end up at arbitration with the federal government, due to the union contract terms. If they want to appeal the decision of the arbiter, they’ll go to the third arm created under the Carter-era law: the Federal Labor Relations Authority, another three-member board with members nominated and confirmed to terms.

The Special Counsel hangs onto his job by a thread

Probationary employees who were fired on and around Valentine’s Day are depending on the Office of Special Counsel to get their jobs back. Six of them, attempting to be representative of all fired probationary workers at their six different agencies, asked the current special counsel Hampton Dellinger, to make a case on their behalf.

Federal law only allows probationary employees to be fired for poor performance that is backed up with individualized reviews, but the Trump administration fired them using nearly identical emails simply saying they were poor performers. Their lawyers have argued this was a thinly veiled reduction in force, which generally requires 60 days’ notice to employees.

But an aide to Trump fired Dellinger, who doesn’t serve at the pleasure of the president, on the night of Feb. 7 in a one-sentence email. Dellinger sued, saying it was illegal to fire him before the end of his term in 2029 for anything other than “inefficiency, neglect of duty, or malfeasance in office,” which he said Trump had neither proven nor could prove.

The Department of Justice, representing the Trump administration, argued that the president has the power to remove Dellinger because he is a single person running an executive agency, and said the Office of Special Counsel shouldn’t get special treatment.

“The unconstitutionality of the Special Counsel’s tenure protection has long been apparent,” the department’s lawyers wrote. “The executive branch has repeatedly objected to that protection.”

Berry, from the Cato Institute, called the case “part of a long-running debate” over what level of power the president has over independent agencies and independent boards. “Trump is kind of pushing the issue,” he said.

A court temporarily reinstated Dellinger, who promptly asked the Merit Systems Protection Board to pause the terminations of those six probationary employees at six agencies, and reinstate them while he investigated their cases. Dellinger issued a statement saying he would “continue to pursue” allegations of illegal personnel actions against others.

“If he had been removed permanently, he wouldn’t have been able to make that decision, and all of those employees would’ve been out of luck,” said Melanie Stratton, an attorney with the Workplace Justice Lab at Northwestern University.

Dellinger’s case to keep his job is ongoing, and he could still be removed in the future. Hirn, the labor lawyer, pointed to the potential universe of 200,000 employees who were in their jobs for less than a year at the time the firings of probationary employees began: “Whether 200,000 people lose their job or not really at this very moment is dependent on the Special Counsel and whether he is in office.”

The Trump administration told the court that they would like to appoint Secretary of Veterans Affairs Doug Collins to do Dellinger’s job as well. The Department of Veterans Affairs accounted for 28% of the Special Counsel’s caseload in 2023, the most of any federal agency.

Devine, the lawyer for whistleblowers, criticized the move. He said running the Department of Veterans Affairs is already a full-time job, and said there’s an inherent conflict of interest.

“Now as a moonlighting role, the head of the Department of Veterans Affairs is going to be responsible to protect all the employees against the head of the Department of Veterans Affairs,” he said.

The Merit Systems Protection Board will depend on a quorum

Earlier this week, the Merit Systems Protection Board issued a decision agreeing with Dellinger that the government should temporarily pause the terminations of six employees and reinstate them at the Department of Veterans Affairs, the Department of Education, the Department of Energy, the Department of Agriculture, and the Office of Personnel Management.

In a statement, Dellinger warned agency heads that he will “continue to pursue allegations of unlawful personnel actions” including asking the board for relief for additional affected workers. “I urge agency leaders to voluntarily and immediately rescind any and every unlawful termination of probationary employees,” he wrote.

But Trump almost upended this process when he fired the chair, Cathy Harris, just before 11 p.m. on Feb. 10, leaving the board with two members – Raymond Limon, a Democrat whose term expires Saturday, and Henry Kerner, a Republican. A court temporarily reinstated Harris, too, after she sued.

The Department of Justice argued in court that Trump has the power to remove Harris because executive power rests with him, and she is performing an executive function.

“The president must be able to remove board members at will,” the Department of Justice wrote.

Harris’ term doesn’t end until 2028, but her Democratic colleague Limon’s term is expiring on March 1. Without three members, if one has to recuse from a case, there won’t be a quorum. That’s happened before.

When Harris took her job in 2022, her office had about 3,800 backlogged cases because the board hadn’t had a quorum in five years – a period of time that started during Trump’s first term when he delayed making appointments. Harris wrote in her lawsuit that she finished processing all but 56 those cases.

A state of limbo at the board that works with unions

About 2.1 million federal workers are covered by union contracts, which means they can ask their unions to help them fight what they consider unfair labor practices. Their first stop would be arbitration, but if either side wants to appeal an arbiter’s decision, the issue goes to the Federal Labor Relations Authority.

Trump fired its board chair, Susan Grundmann, on the night of Feb. 10, three and a half minutes before he fired Cathy Harris. She’s suing to be reinstated, but for the time being, Trump named Colleen Kiko, a Republican member, as chair, presiding over only one other member, Democrat Anne Wagner.

The Justice Department argued on Trump’s behalf that he alone has the authority to fire people who assist him in carrying out his duties. “The President cannot be compelled to retain the services of a principal officer whom he no longer believes should be entrusted with executive power,” the department wrote.

Hirn, the union lawyer, said it’s likely that the two remaining members will deadlock on a decision, leaving appeals on arbitration decisions in limbo. He said cases would sit undecided, and federal agencies won’t have to comply with any awards an employee wins.

“By removing Grundmann, the president has succeeded, at least temporarily, in ensuring that any significant arbitration case that a union wins will be effectively moot until a third person is nominated and confirmed,” Hirn said.

‘A three-way stop’

Earlier this month, a federal judge in Massachusetts, George O’Toole, rejected attempts from labor unions to block the Trump administration’s deferred resignation program that offered workers eight months of pay to quit immediately. O’Toole said he didn’t have jurisdiction over the issue, because they hadn’t gone through the process Congress set up for them.

A federal judge in Washington, D.C., Christopher Cooper, told a union representing employees at the Treasury Department that it should have gone to the Federal Labor Relations Authority. The union was attempting to challenge terminations of probationary employees, large-scale reductions in force, and the deferred resignation program.

Judge Carl Nichols, also in Washington, D.C., made a similar argument after unions representing foreign service workers asked for help blocking the shutdown of the U.S. Agency for International Development.

On Thursday night, Judge William Alsup in San Francisco ordered the Trump administration to rescind memos that led to the the firings of probationary employees, holding that the mass terminations were likely unlawful.

The Justice Department’s response to the lawsuit said the unions lacked legal standing to bring the case and they should take their claims to the Federal Labor Relations Authority or the Merit Systems Protection Board. Alsup agreed the unions likely lacked standing but said the members of nonprofits who were affected by layoffs, such as veterans missing mental health services, had lawfully sued.

“Imagine you’re an employee, and you’re at a three-way stop,” Stratton of Northwestern Law said. “And you can go to the Office of Special Counsel, but the Special Counsel got removed. Then, ‘OK, I’m going to look to my union.’ But then you realize the appeal rights of your union were removed.

“Then you say, ‘OK, OK, I’m going to go to the MSPB,’” Stratton said. “But then you realize that one of the board members at the MSPB has been removed. That’s functionally what the Trump administration tried to do. They haven’t been fully successful in that, but that’s what they tried to do.”