The Trump administration’s go-to tactic for firing career federal employees — delivering form letters that cite President Donald Trump’s “Article II” constitutional powers — is backfiring in a way that could bolster the flood of lawsuits against the government.
Until now, the White House had effectively shut down the primary legal avenue ex-employees had to challenge their terminations by refusing to fully staff an obscure government panel that handles workplace disputes. But a New York judge on Tuesday issued a decision that said the dismissals open the door to bringing the fight to federal court. It was the second such ruling this month.
With this latest decision, the Justice Department has two weeks to respond to a lawsuit from former FBI Director James Comey’s daughter, Maurene Comey, who claims she was fired illegally last year from her job as a federal prosecutor. She had worked on some of the biggest cases at the Manhattan U.S. attorney’s office.
Maurene Comey, who spent nearly a decade as a prosecutor there, participated in 116 cases in that district, according to court records compiled by NOTUS. U.S. District Judge Jesse M. Furman highlighted Comey’s reputation and tenure in his ruling.
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“Maurene Comey was, by all accounts, an exemplary Assistant United States Attorney,” he wrote. “In her nearly ten years working at the United States Attorney’s Office for the Southern District of New York, she was assigned some of the country’s highest profile cases, and she consistently received the highest accolades from supervisors and peers alike. But Comey is also the daughter of James B. Comey, the former Director of the Federal Bureau of Investigation and long-time target of President Donald J. Trump’s ire.”
Trump’s personal animus toward the former FBI director stretches back to his first presidential term and culminated in an unsuccessful attempt to criminally prosecute James Comey late last year. Right-wing activist Laura Loomer called for Maurene Comey to be “FIRED from the DOJ immediately” last May.
The termination letter that came two months later said the decision was “pursuant to Article II of the United States Constitution and the laws of the United States.” Comey filed her lawsuit later that summer, arguing that “the executive branch cannot use Article II to overrule Congress and remove career civil servants for perceived disloyalty.” The DOJ responded by claiming that federal courts didn’t have jurisdiction over cases such as Comey’s because the 1978 Civil Service Reform Act says federal employees must appeal to the Merit Systems Protection Board, which hasthousands of cases to adjudicate.
However, the judge overseeing Comey’s case concluded that the government’s decision to cite Trump’s presidential powers allows fired employees to circumvent the MSPB.
“Comey’s case does not fall within the purview of the CSRA’s scheme because she was fired pursuant to Article II of the Constitution, not pursuant to the CSRA itself. Defendants’ sole reliance on the Constitution — rather than the removal provisions of the CSRA — places Comey’s case outside the universe of cases that Congress intended the MSPB to resolve,” Furman wrote.
His decision came just two weeks after U.S. District Judge Michael S. Nachmanoff in Virginia reached a similar conclusion in a lawsuit filed by Mary Comans, who lost her job as chief financial officer of the Federal Emergency Management Agency in the opening days of Trump’s second term.
A press release from the Department of Homeland Security at the time said that she and three others at the agency made “egregious payments for luxury NYC hotels for migrants” and characterized them as “deep state activists” who threaten the “safety of the American people.” Comans also received a letter stating that the decision to terminate her was made “pursuant to Article II of the United States Constitution, at the direction of the president.”
In his April 15 order, Nachmanoff noted how the government claimed Comans couldn’t challenge her “Article II” termination when she tried to have it reviewed by the inundated review panel — then later claimed she couldn’t take the matter to federal court when she sued.
“That is wrong,” Nachmanoff wrote. “As defendants have repeatedly confirmed, plaintiff’s termination is premised only upon the president’s asserted Article II powers, not the CSRA.”
But Nachmanoff went further, saying that “jurisdiction in federal district court, and not the MSPB, is mandatory.”
Hundreds of government workers have reported receiving similar letters in recent months, including those at the Justice Department who worked on cases that angered the president and his MAGA movement, such as the Jan. 6 prosecutions and criminal investigations into Trump while he was out of office.
“I think many of these cases may ultimately determine whether these terminations — based on nothing more than an unprecedented assertion of broad executive authority — are constitutional,” said Stacey Young, executive director of Justice Connection, an advocacy group that provides support for current and former DOJ employees facing political pressure from the Trump administration.
“This will determine whether civil service protection laws can indeed protect federal employees as Congress intended. It’ll determine whether our country will return to the spoils system of the 19th century where patronage and corruption ran rampant,” she added.
Justice Connection says at least 158 termination letters delivered to DOJ career employees cited “Article II” as the basis for the decision.
Lawyers representing fired government workers have, for more than a year, voiced frustration that thousands of petitions have gone unresolved by MSPB — and that the backlog could remain until after the second Trump administration ends. Despite the two decisions this month, judicial response to federal employees lawsuits have been mixed, with some federal judges moving suits back to MSPB. However, labor attorneys can now point to these two recent judicial decisions when making new challenges.
“Every government employee who got fired under Article II should run to their nearest federal court and file suit,” said Pamela Keith, a D.C. labor attorney who represents FBI agents and fired government employees.
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