WASHINGTON — The more than 2 million federal employees have legal rights as civil servants that are supposed to protect them from being fired unfairly, including for political reasons.
But the Trump administration’s mass firings have exposed a flaw that has left tens of thousands unprotected just when they need protection the most.
The Civil Service Reform Act of 1978 created an administrative agency inside the government to hear complaints from federal workers who say they have been wrongly demoted or discharged. And the Supreme Court said this agency provides the “exclusive forum” to decide those claims, not an independent federal court.
Citing that procedural rule, four federal judges in recent weeks have tossed out large lawsuits brought by unions and others representing employees.
Judges voiced regret but said they “lacked subject matter jurisdiction” to hear the complaints or to rule on the legality of the firings.
“An onslaught of executive actions have caused, some say by design, disruption and even chaos in widespread quarters of American society,” prompting many to seek emergency help in court, U.S. District Judge Christopher Cooper, an Obama appointee in Washington, wrote in dismissing a suit brought by the National Treasury Employees Union and four other groups.
But judges are “duty-bound to decide legal issues based on even-handed application of law and precedent — no matter the identity of the litigants or, regrettably at times, the consequences of their rulings for average people,” he said.
Legal experts say the civil service system was not set up to deal with the sudden dismissal of thousands of workers.
“There is no legal mechanism for stopping these firings,” said Suzanne Summerlin, a Washington attorney who represents federal employees. “If you can’t go to court, there’s no way to stop them. You can bring an administrative complaint, but you have to go through the process until the end and that takes many years. The Merit Systems Protection Board still has cases from the first Trump administration.”
She said employees who are wrongly fired “can file a claim and seek retroactive relief. That could be back pay and benefits, which could result in a large award,” she said. “But it will take years to win your case.”
The law allows the losing side to seek a review in a special federal appeals court, which affirms about 95% of the board’s decisions.
The civil service law “was designed for normal times, not this,” said George Washington University Law professor Alan Morrison. “No one was expecting that some day, the president would want to fire 50,000 employees all at once. Some of these plaintiffs will be dead before the Merit Systems Protection Board finally decides their cases.”
White House advisor Elon Musk flashes a “DOGE” T-shirt, the acronym for his so-called Department of Government Efficiency.
(Jose Luis Magana / Associated Press)
Led by White House advisor Elon Musk, the Trump administration has moved to shut down entire agencies and departments and drastically reduce their staffs.
In response, dozens of lawsuits have been filed that assert Trump officials are violating the law, and most of the suits urge a judge to order a stop. This could be through a temporary restraining order or a more lasting injunction.
Democratic state attorneys and other plaintiffs have won rulings that blocked the administration’s “freeze” on funding and its refusal to disburse money that was approved by Congress.
But the civil service law has made it much harder to protect federal employees.
To get around the procedural barrier, Democratic attorneys from 20 states sued last week claiming the mass firings hurt their states through “decreased tax revenues and increased demands for social services.”
U.S. District Judge William Alsup in San Francisco granted a “limited injunction” in late February to stop firings at the National Park Service based on a suit from the Coalition to Protect America’s National Parks and at a few other agencies that had organized advocates.
But judges said they did not have authority under the civil service law to block the administration’s decisions to suspend or dismiss employees.
They cited the Supreme Court’s decision in Elgin vs. Department of Treasury in 2012. In a 6-3 decision, the justices said a fired employee did not have a right to sue in federal court over his dismissal for failing to register for the Selective Service.
The court said the law channels such claims to the administrative agency and “precludes district court jurisdiction” because Congress intended the MSPB would be “the exclusive avenue” for bringing such claims.
All these suits are at preliminary stage, however. They have not been decided finally by a U.S. court of appeals. If the administration loses there, Trump’s lawyers are almost certain to appeal to the Supreme Court.
The outcome is not likely to turn on the decisions of an administrative agency.
In 1978, Congress created two new agencies to hear and resolve claims from federal employees who said they had been mistreated, demoted or fired for improper reasons. One was the Merit Systems Protection Board, while the Federal Labor Relations Authority hears grievance claims from unionized employees.
Both are supposed to be headed by a three-member board, but vacancies are common. Currently, the MSPB has one Republican who serves as the acting chair and one Democrat, Cathy Harris, who Trump wants to fire. The president can also fill the vacant third seat with another Republican.
The FLRA also has two members from opposite parties and one vacancy.
Summerlin said she expected “these boards will not be functional during this administration. They would like to shut down these agencies, and they won’t be bothered by backlogs.”
