WASHINGTON, D.C. (The Washington Post) — 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 the MSPB to assert that the presidential powers in the Constitution outrank the right to due process for workers, although the MSPB has previously said it lacks the statutory authority to consider constitutional claims.
“The Trump administration’s effort 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 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 the backlog of cases — though the judges have said they inherited that problem and were addressing it.
Jackler — a former lawyer in the Navy’s Judge Advocate General’s Corps and special assistant U.S. attorney, who also 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 lawyer and Department of Homeland Security trial attorney — had wondered if it was a mistake and if he might be 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 … 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 MSPB, which currently lacks 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 MSPB that the opinion was binding and that “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 administration’s argument 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 asked that the 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.”
