Trump admin. tells judge it can fire at least some career feds at any time for any reason

The Trump administration is formally arguing before a federal oversight body that it has unilateral authority to fire many federal employees at any time, seeking to unwind decades of precedent and current federal law. 

President Trump can fire employees at will and without cause by the powers vested to him in the Constitution, Justice Department attorneys told an administrative judge within the Merit Systems Protection Board, the quasi-judicial agency that hears appeals of personnel actions from federal employees. 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. 

Justice has taken an aggressive approach in dismissing career staff, beginning just hours after Trump took the oath of office in January 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, such as in March when it fired the department’s top pardon attorney, Liz Oyer.

Oyer, like dozens of other Justice officials who have been fired under Trump, brought her case to MSPB. The government’s pardon attorney has publicly stated she was fired for refusing to recommend that actor Mel Gibson have his gun rights reinstated and sought to assert her rights as a whistleblower. 

While Deputy Attorney General Todd Blanche told reporters at the time that Oyer was engaging in “false accusations,” Justice attorneys told the MSPB judge earlier this month “the facts are not in dispute” in the case. They made the assertion in claiming that additional information requested by Oyer’s attorney through the discovery process was not necessary. 

“Appellant was removed from her position from OPA under Article II of the United States Constitution,” the department said. The dispute is thus over that interpretation of the Constitution, it argued, and therefore the evidence underlying the case was immaterial. 

The administration is asserting the employees it has fired are inferior officers under the Constitution, meaning the president has full control over their appointment and removal. It has made a similar argument in the case of Mary Comans, former chief financial officer at the Federal Emergency Management Agency, who Trump fired after alleging she misused federal dollars when authorizing funds to house migrants in hotels. 

Jim Eisenmann, who previously served as MSPB’s general counsel and later its executive director and is now a partner at Alden Law Group, where he is representing Oyer, said it appears the Trump administration is seeking to expand the universe of feds it can fire at will. 

“I think they want to make that argument as broadly as possible,” Eisenmann said. 

Oyer was one of a slew of Justice executives who were dismissed with no stated reason. Her and other termination notices suggested the action was taken “pursuant to Article II of the Constitution and laws of the United States.” 

In April, Justice asked the MSPB regional judge hearing Oyer’s case to consolidate it with some of those other executives and that any decision on her appeal be delayed. Oyer countered that her case contained distinct facts, including her assertion of whistleblower protection rights. In May, the administrative judge sided with Oyer and ordered Justice to cooperate in providing documents related to this case through the discovery process. 

That, in turn, led the Trump administration arguing last week it was not disputing the facts of the case and instead arguing it could fire Oyer at any time for any reason. The New York Times previously reported on the Trump administration’s new argument before MSPB. 

In a recent post on her substack, Oyer said her case could have far reaching impacts. 

“The implications of this are enormous,” Oyer said. “They reach far beyond my case. The Department is trying to erase legal protections for federal employees that are nearly a half-century old. “ She added the executive branch now “by fiat is seeking to eviscerate” the 1978 Civil Service Reform Act.

Adding to the gravity of the appeal, the Office of Personnel Management has intervened in Oyer and nearly 50 other Justice Department cases. While Justice would be limited in appealing an administrative judge ruling that goes against the department up to MSPB’s central board—which is currently operating without a quorum after Trump fired the sole remaining Democratic nominee and therefore cannot issue rulings of its own—OPM would be free to take its appeal directly to the federal circuit and, eventually, to the Supreme Court. The Trump administration could then ask the high court to create new precedent allowing for easier firing of federal workers. 

Civil service protections date back more than a century and were most recently solidified in the 1978 Civil Service Reform Act. 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. 

The Trump administration is now arguing the CSRA is either unconstitutional—a matter outside MSPB’s jurisdiction—or not applicable in this case. It has separately created a new classification of federal employees called Schedule Policy/Career, which OPM has estimated would allow agencies to fire around 50,000 workers in policy-setting roles at will. 

The administrative judge in Oyer’s case has ordered both sides to make new filings by Aug. 15. If the subsequent ruling goes against Oyer, she can take her case directly to the federal circuit and bypass MSPB’s hamstrung central board.