Article II Firings and Federal Court Rights
article ii firings civil service protections federal court claims federal employment mspb appeals Apr 30, 2026For most federal employees, removal cases follow a familiar path. If an agency fires someone for performance, conduct, or as part of a reduction in force, the Merit Systems Protection Board is usually the forum where that employee challenges the action. That ordinary rule still matters.
But a different category of termination letters is now creating a different legal problem. Some career federal employees have reportedly been removed without the usual explanation of misconduct, poor performance, or abolished position. Instead, the letter invokes “Article II” or the President’s constitutional power as the basis for immediate removal.
That language is not a small detail. It may determine whether the government can force the employee into the MSPB process—or whether the employee can go directly to federal court.
The Government Cannot Have It Both Ways
The legal trap is straightforward. When employees appeal to the MSPB, the government argues that they were not fired under civil service law, so the Board lacks jurisdiction. When those same employees sue in federal court, the government argues that federal employment disputes must go through the civil service system.
That is a heads-I-win, tails-you-lose position. And recent federal court rulings have started to reject it.
Two judges, in cases involving former FEMA Chief Financial Officer Mary Comans and former federal prosecutor Maurene Comey, allowed the employees to proceed in federal court. The reasoning is practical and important: if the government says the firing came from the President’s constitutional authority rather than ordinary civil service law, then the government cannot also use ordinary civil service law to block courthouse access.
For affected employees, that distinction matters enormously. Federal court may offer a faster and more direct path than waiting in an MSPB backlog while the core constitutional issue remains unresolved.
Why Civil Service Protections Still Matter
The Civil Service Reform Act was built on a basic principle: career federal employees should not lose their jobs because of political loyalty tests, personal grudges, or perceived disloyalty. The modern civil service exists because the old spoils system damaged public administration and public trust.
That does not mean every Article II argument automatically fails. The Supreme Court has not resolved this specific wave of disputes, and some judges may still send cases back to the MSPB. But the broader question is now squarely in play: can a President remove career civil servants simply by invoking constitutional power?
Federal employees should treat that question with seriousness, not panic. Mindfulness in this moment means slowing down enough to notice the legal facts in front of you. The wording of the letter, the stated reason for removal, the date of receipt, and the process offered afterward may all shape the next step.
What to Preserve Immediately
If your letter mentions “Article II,” “constitutional power,” or presidential removal authority, save everything. Keep the letter, the email, the envelope, delivery records, screenshots, and any agency communications that explain or refuse to explain the basis for termination.
Do not assume your case is just like someone else’s. Do not assume MSPB is the only option. And do not miss deadlines while trying to sort out the forum question. The legal theory in your termination letter may be the whole game.
Legal Disclaimer: The information provided in this article is for informational purposes only and should not be construed as legal advice. While I am a federal employment attorney, this post does not create an attorney-client relationship. Every situation is unique, and legal outcomes depend on specific facts and circumstances.
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