How a low-profile federal board could host appeals for thousands of fired government workers

Yahoo

24-02-2025

Thousands of federal workers fired in recent days by the Trump administration may be able to use an appeals process to get reinstated in their jobs — and potentially receive back pay. But the process could take months and come with future challenges from the White House.
Fired workers can appeal their terminations to the Merit Systems Protection Board, which was created in the 1970s to help ensure a merit-based employment system for the federal workforce. The obscure body consists of around 60 administrative judges who adjudicate cases brought by federal workers who claim they were wrongly terminated. Three Senate-confirmed board members hear challenges to rulings by those judges.
Last year, the board, which describes itself as an 'independent, quasi-judicial agency,' heard around 4,500 cases. Already this year, it has been seeing an uptick in appeals from federal workers seeking to challenge their terminations, said William Spencer, the Merit Systems Protection Board's executive director. He said he wasn't currently able to provide exact numbers.
The Trump administration has been firing thousands of workers in recent weeks, affecting nearly every federal agency, including those that provide essential public safety functions like the Centers for Disease Control and Prevention, the Department of Homeland Security and the Federal Aviation Administration. Many of the terminations have targeted relatively new hires with fewer job protections, employees working in diversity, equity and inclusion roles, and Justice Department officials involved in prosecuting Jan. 6 cases.
Federal employment lawyers say those workers may have strong cases before the board because the administration hasn't appeared to follow the laws and procedures in place dictating how it can (and can't) terminate federal workers.
'I think a number of employees who have been fired have excellent cases that they could bring before the board,' said Jim Eisenmann, an employment lawyer with the Alden Law Group who has also served as general counsel and executive director of the Merit Systems Protection Board.
Typically, if the federal government wanted to eliminate a group of workers, there would be a competitive process to determine who should keep their jobs, and some workers would be given the opportunity to be reassigned to other jobs. In some cases, priority would be given to those with tenure, veteran status or superior performance reviews.
When an agency wants to fire an employee for cause, it has to provide a reason and give the employee an opportunity to respond before finally issuing a written decision.
Instead, the Trump administration has been quickly mass-firing groups of employees with little notice or explanation.
'People are supposed to be retained or not retained based on the adequacy of their performance,' said Eisenmann. 'There's no way these agencies in these wholesale firings have actually evaluated people based on their performance. In fact, some of these people had just gotten feedback saying their performance excelled beyond all expectations.'
Fired employees who were still in a so-called probationary period have fewer protections for the first one to two years on the job. Their options for appeal are somewhat limited. But those workers could argue their firings were politically motivated since they were hired under the Biden administration, said Eisenmann.
In letters sent to employees and reviewed by NBC News, the administration claimed the firings of probationary employees were because of poor performance, though multiple employees who received those letters shared positive performance reviews they had recently received.
The appeal process could be relatively lengthy for some employees, though. Once an appeal is filed with the Merit Systems Protection Board, an administrative judge has 120 days to make a ruling. If the employee wins that initial ruling, the federal government could appeal the decision — first to the body's three-person board and then, ultimately, all the way up to the Supreme Court.
That means any challenges could set the Trump administration up for a fight before the Supreme Court that could ultimately undo many of the rules and processes that currently protect the federal workforce. Many of them were built up over more than a century and were intended to create stability and prevent the civil service from becoming politicized by each incoming presidential administration.
Outside of the Merit Systems Protection Board, unions representing federal workers have been suing to block the mass firings of probationary employees and President Donald Trump's Feb. 11 executive order for 'large-scale reductions' in the federal workforce. Earlier this week, a judge denied that bid and found that those types of claims should go before the Federal Labor Relations Authority, a three-member agency that handles federal labor disputes.
Fired workers could run into further obstacles, though, as Trump seeks to remake the Merit Systems Protection Board.
He recently sought to fire Cathy Harris, the board's chair, though she was temporarily reinstated to her job by a federal judge. In his ruling, U.S. District Judge Rudolph Contreras found the firing 'appears to be nakedly illegal.' The Trump administration is appealing the decision, part of a broader set of challenges to laws that seek to insulate some executive branch agencies from the White House via longer terms of service and specific provisions on how appointees can be fired.
Harris was nominated for a seven-year term by then-President Joe Biden and confirmed by the U.S. Senate to the board. Federal law states that members can only be fired by the president because of 'inefficiency, neglect of duty, or malfeasance in office.'
Another member of the Merit Systems Protection Board will see their term expire on March 1, though they will be able to stay in the job temporarily until the Senate confirms their replacement.
The board needs at least two of its three members to make rulings. During Trump's first term, it lacked enough members to make any rulings on appeals.
This article was originally published on NBCNews.com