By Daniel Wiessner
(Reuters) – U.S. government employees who lose their jobs in President Donald Trump’s ongoing purge of the federal workforce and bring legal challenges face an uphill battle, with potentially little recourse even for those who prevail.
The main venue for federal employees to contest firings and other disciplinary actions is the Merit Systems Protection Board, one of several independent federal agencies that have been paralyzed by the Republican president’s efforts to bring them under his control.
Many workers caught up in Trump’s mass firings may be discouraged from pursuing legal action due to the lengthy and complicated administrative process before the merit board, the legal expenses involved and a desire to move on with their lives, according to employment lawyers and other experts.
“It will take lots of encouragement to get these people to challenge their terminations,” said Michael Fallings, an Austin, Texas-based lawyer who represents federal employees.
Trump’s administration last week began firing thousands of workers at several agencies, according to unions and former employees, initially targeting probationary employees who were hired relatively recently or workers on fixed-term assignments with fewer job protections than other federal employees. The administration has not said how many people have been fired.
Terminations are continuing as part of Trump’s dramatic downsizing and overhaul of government, and are expected to include mass layoffs taking weeks or longer to implement.
Trump last week ordered agencies to work closely with an entity he created that is spearheaded by billionaire Elon Musk to shrink the federal workforce by identifying government employees who can be laid off, functions that it decides can be eliminated entirely and federal programs that can be dismantled.
Most of the 2.3 million civilian federal employees can be fired only for misconduct or poor performance, and agencies must follow complex procedures to implement large-scale layoffs including explaining their necessity. But to enforce those rights, the 70% of federal workers not represented by unions must turn to the Merit Systems Protection Board.
LONG ODDS
Appeals filed by federal employees of their firings are screened by agency staff and then heard by in-house administrative judges, whose decisions can be reviewed by the three-member board. The board’s rulings can be appealed to a Washington-based federal appeals court.
Probationary employees have more limited appeal rights, but can challenge terminations by asserting that they were unlawfully discriminatory or that agencies did not follow proper procedures.
The board can order agencies to reinstate workers who are unlawfully fired and can award back pay, though it is not required to do so. The process can take months or years, meaning that even workers who pursue appeals and win probably would have found new employment by the time a case is resolved.
Those who do appeal rarely win. The board ruled in favor of an employee in only 98 of 4,135 appeals – 2.4% of the cases – in 2023, according to an annual report released last year. About 730 of those cases – roughly 18% – were resolved through settlements. The success rate is higher for workers who hire legal counsel than those who do not, according to Aaron Wersing, a Houston-based lawyer who represents federal employees.
POWER PLAY
A federal employee’s chances of successfully challenging a firing may be even lower if Trump succeeds in bringing the Merit Systems Protection Board under his control. Trump and his allies have argued that because agencies like this board exercise executive powers by enforcing federal laws, the president should be able to remove their members at will even if Congress has passed a law providing job protections.
Trump last week moved to fire Cathy Harris, a Democrat who was chair of the board during President Joe Biden’s administration. A federal judge temporarily reinstated Harris on Tuesday while he considers her claims that Trump violated a federal law allowing board members to be removed only for “inefficiency, neglect of duty or malfeasance in office.” Trump’s administration is appealing that decision.
The term of the board’s other Democratic member, Raymond Limon, is due to expire on March 1, leaving it with a 1-1 split and giving Trump the opportunity to cement Republican control. His appointees may be less likely to side with workers and more sympathetic to Trump’s efforts to slash the federal bureaucracy, according to experts.
If Harris loses her legal challenge, the board would at least temporarily lack a quorum of two members and would be unable to decide cases at all until a replacement for her or Limon is named and confirmed by the U.S. Senate.
The board was left without a quorum for five years, through Trump’s entire first term as president, and its backlog grew by about 3,800 cases during that time. Trump began his second term in January.
The nearly 30% of federal employees represented by unions have the right to appeal firings to the board, but can instead opt to have their unions pursue challenges on their behalf in arbitration. That process is typically faster than going through the board, though it is not clear whether workers are more likely to win those cases. Unions have sued the administration in federal court to challenge firings and layoffs on a broad scale, but those cases are likely to face various procedural hurdles and any victories could be limited to union members.
(Reporting by Daniel Wiessner in Albany, New York, Editing by Alexia Garamfalvi and Will Dunham)
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