The Just Security Podcast

What Just Happened Series: Understanding Federal Employee Rights

• Just Security • Episode 102

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In his second term in office, President Donald Trump has already taken sweeping measures on immigration, the environment, the U.S. military, and the structure of the federal government.

With so many executive orders, policy changes, and novel actions, it’s easy to wonder, “What just happened?” In this podcast mini-series we help to answer exactly that question. 

On each episode of “What Just Happened,” we’ll talk with leading experts, from former government officials to practitioners and professors – the people who understand how government works from the inside and have been engaged with these issues for years. They will explain the legal background and implications of how the Trump administration’s actions affect how the U.S. government operates in Washington, across the country, and around the world.

As always, this is not a political podcast – we are explaining the meaning and consequences of policy changes that may not be immediately apparent. Any opinions expressed are those of the speaker.

Today, we will focus on the federal civil service. What are the different types of civil servants, what protections do they have, what remedies are available to them, and what comes next for those Americans who have dedicated their careers to public service.

Our guest is Suzanne Summerlin. Suzanne is a labor and employment attorney specializing in federal workforce issues. She has extensive experience in litigation, union advocacy, and federal labor policy. Among other jobs, Suzanne was previously an attorney for the National Federation of Federal Employees. 

This podcast does not contain legal advice. If you need legal assistance, you should contact an attorney. 

Show Notes: 

Tess Bridgeman: In his second term in office, President Donald Trump has already taken sweeping measures on immigration, the environment, the U.S. military, and the structure of the federal government itself.

With so many executive orders, policy changes, and novel actions, it’s easy to wonder, “What just happened?” In this podcast mini-series, we help to answer exactly that question. I’m Just Security’s Co-Editor-in-Chief, Tess Bridgeman.

David Aaron: And I’m David Aaron, a former federal prosecutor with the Department of Justice’s National Security Division and a visiting professor at Wesleyan University. On each episode of “What Just Happened,” we’ll talk with leading experts, from former government officials to practitioners and professors — the people who understand how government works from the inside and have been engaged with these issues for years. They will explain the legal background and implications of how the Trump administration’s actions affect how the U.S. government operates in Washington, across the country, and around the world. 

As always, this is not a political podcast — we are explaining the meaning and consequences of policy changes that may not be immediately apparent. Any opinions expressed are those of the speaker.

Today, we will focus on the federal civil service. What are the types of civil servants, what protections do they have, what remedies are available to them, and what comes next for those Americans who have dedicated their careers to public service? I hope you will share this episode with people who may not have this issue at the front of their minds. People outside of Washington, and people who do not have federal employees in their lives, may not be up to speed on this particular set of issues.

And for the federal civil servants out there: A podcast is not legal advice and is no substitute for legal advice. There are a lot of people giving opinions on television and the internet about legal risks and options. If you need legal assistance, you should contact an attorney.  

Tess: Our guest today is Suzanne Summerlin. Suzanne is a labor and employment attorney specializing in federal workforce issues. She has extensive experience in litigation, union advocacy, and federal labor policy. Among other jobs, Suzanne was previously an attorney for the National Federation of Federal Employees. Suzanne has written two recent articles for Just Security about the issues facing the federal workforce, which we highly recommend reading alongside listening to this podcast. 

Welcome, Suzanne. It's so great to have you with us today with your wealth of knowledge and expertise on these issues that are top of mind for so many. And I thought it might be helpful for us to start with just some lay of the land type conversation, maybe beginning at the very start. What do federal employees do? What is the federal workforce and what are some of the reasons that you think federal employees are helpful in ways that make a difference in Americans' lives?  

Suzanne Summerlin: Yeah, the United States government employs hundreds of thousands of people to help Americans with you know, it runs the gamut, right? It's our nuclear weapons in our defense of this country. It is the safety of our food. It is livestock and animals and farming. It is, you know, regulation of industries that have faltered in the past. You know, so much of what the United States government has done, so many of the laws that Congress have passed, you know, are reactionary to specific events in American history that collectively as a country, you know, we have said we don't want this to happen again. We don't want a filled milk scandal. Therefore, we have, you know, people who investigate and make sure that our milk is healthy and safe, right?

You know, there's tons of examples of that throughout history where, you know, an unchecked actor in the market does something, it harms a bunch of people, and so the U.S. government steps in to say, okay, well, we want to make sure that we don't have that happen again. So, there's so much about what federal servants do, civil servants do that is just helping Americans live the, you know, the healthiest, safest, happiest lives possible.

Tess: Fantastic. And so just with that lay of the land, maybe I'll turn it to David to think through some other ways to break down what is the federal civil service that can help us understand what's going on? 

David: Sure thing. So, you know, people have been hearing in the news about different types of federal employees, different categories of federal employees. As we set the table here, can you just give us a rundown of what the different general categories of federal employees are? 

Suzanne: Sure. There are a lot, right, but there are basically three main categories. The competitive civil service are the types of employees that are hired through a merit-based process. They're generally hired on USA Jobs, the website the federal government uses, in processes that include open competition. There may be examinations that they have to pass, and they adhere to civil service laws. And that's where most executive branch positions fall. These are governed by Title Five of the United States Code, and they enjoy the vast majority of protections under civil service laws. 

The second category of employees, sort of big bucket, is excepted service. So, these are folks that are not hired through the traditional hiring process, the competitive hiring process. They're exempt from that because what they do is highly specialized, and it is authorized by a separate law to be an excepted service position. So, that would be folks like in our intelligence agencies. That would be folks with advanced degrees, like attorneys, in some positions in federal education and healthcare. Doctors, for example, at the VA could be considered excepted servants in some instances. 

And then beyond that, you have the senior executive service. Those are going to be your high-level managers who serve in key leadership roles across federal agencies. These are not politically appointed people. These are apolitical civil servants who sort of have to bridge the gap between the political appointees, which will change with every presidential administration, and the general civil service workforce, which ideally will not, right? That's the scheme. That's the whole idea.  

And then, in addition to that, you have political appointees. Those are the ones that are appointed by the president or agency heads. Sometimes the Senate is involved with advice and consent. We have the military, the personnel serving in the armed forces, and, you know contractors as well. 

David: Thank you. In terms of hiring and firing and rights, I think no one's surprised at the idea that a political appointee, you know, that might be in a job that turns over administration to administration. But in terms of people in these career positions, whether they're SES or, you know, kind of regular GS workers. What is the difference? What are the differences among the different groups in terms of hiring or firing, being moved to a different position? Does that change if you're SES, does it change if you're a career civil servant?

Suzanne: Yeah, lots of factors come into play when it comes down to what rights are you afforded under the Civil Service Reform Act and under the different various statutes that govern this federal civil workforce. And things that come into play are like, how long have you been in the position? Are you on a probationary or trial status? For your first one or two years in any position you might be on probation. You might be on probation, if you have — I mean, I spoke with somebody this week who's been a civil servant for 18 years, 21 years once he tacked on his veteran’s preference. But he was considered, it is currently considered, a probationary employee, because he changed agencies. So, there's, you know, you could be a probationary employee but have still have a career in the civil service. You just happen to have changed jobs recently, for example. There's a lot of things. It's not always so cut and dry just to say, like, oh, everybody on probation has only been here for, you know, two years or less. That's absolutely not true.

And then among agencies, certain agencies for national security and intelligence reasons, you know, they're going to be governed under different rules and regulations than traditional GS-5 employees. You also have these hybrid combinations of employees. So, your doctors and nurses at the VA, for instance, they're hired under an authority called Title 38, and then the rest of folks at the VA are hired under Title Five, but now there's like this category of people in the middle who are considered hybrid employees, and so they are hired under Title 38, but they enjoy the protections of the employees under Title Five. 

So, it can get very complicated, ass you can see as we start to really drill down in this, which is why, I think, you know, there is a frustration out there. It's like, why can't we just have, like, a blanket advice for everybody, like, oh, well, if you're facing this sort of action, here's what you do, one, two, three. It's just not that simple, unfortunately.

Tess: That's really helpful to unpack. And while we're doing the lay of the land, there's obviously a lot of alphabet soup when it comes to the federal government, three letter acronyms abound. One that we hear about a lot lately is OPM, the Office of Personnel Management. Can you just give us a brief overview of what is OPM? What have they been up to so far in the Trump administration, and kind of, what role do they generally play? 

Suzanne: So, OPM was one of the three agencies that was created in the Civil Service Reform Act of 1978 that was signed into law by Jimmy Carter. And what that law did was, the Congress had heard the frustrations of the American people coming out of Watergate and coming out of the Vietnam War, and recognized that we needed to have an apolitical civil service that served Americans and served the Constitution, regardless of who was in charge in the White House. It was really to set up, sort of, a firewall between the politics of American life and the general services we all agree that we should enjoy, no matter who is president. 

And so, the Office of Personal Management, OPM, is sort of the HR department of the federal government. The Civil Service Reform Act created OPM, MSPB and FLRA. So, OPM is the HR department. MSPB is the Merit Systems Protection Board — that's for individuals who are facing actions against their job that they think are prohibited — and then the FLRA is the Federal Labor Relations authority. That is the authority that governs relationship between unions, federal unions, and their members and the agencies that they work for. OPM is, you know, offers agencies a lot of advice on how to follow the rules, how they're supposed to act and govern, but generally, in the past, haven't, don't do, like, direct hiring and firing of individuals. They're really talking to the agencies most often, directing them on what to do.  

Tess: Extremely helpful. And I really love the very simple way of framing this that you just gave us, which is, these agencies exist to put a firewall between the politics of American life and the services we should all enjoy as American citizens. I think that's a great north star to think about when we think about why Congress created these agencies and what they're supposed to do.

So, contrast that to what we've seen so far coming out of the Trump administration. There's clearly a plan to dramatically reduce the federal workforce at breakneck speed. You know, this is something that's been made very explicit in White House fact sheets, where you have the president saying he is committed to reducing the size and scope of the federal government. He's described it as bloated, as filled with people that are “unnecessary.” And then, of course, you have Elon Musk, his head of the so-called Department of Government Efficiency, and sort of a key enforcer, I suppose you could say, given tremendous authority, who's made all sorts of unfounded allegations about federal employees, about the agencies they work for, you know. With no hint of irony, has said they are unelected as a slur against them.

Suzanne: Right, right, and he doesn't even go here, right? Like, he's not from here. I don't really expect him to have studied the spoils system in American government class and, you know, U.S. history like we all did, right? But, yeah, he's certainly coming at this with a perspective that seems to me to be informed by propaganda and political talking points and not really founded in history or reality.

Tess: So, all that said, there is, and always has been, a debate about efficiency. Is the federal workforce efficient? Could it be made more efficient? Do we have about the right number of federal workers or not? You know, it's an interesting, you know, background fact that the size of the federal workforce has been pretty consistent for several decades now, despite Republican and Democratic administrations taking turn holding the White House.

So, is what we're seeing so far, about efficiency, do you think, or is it about something else? 

Suzanne: No, I don't think it's about efficiency. My personal belief is that there are private interests in this country that are not satisfied with the amount of money they get off of government contracts. They're not satisfied with the millions and billions of dollars that they already receive from taxpayer money. I mean, Elon Musk himself and his companies are beneficiary of lots and lots of federal government money in grants for his private businesses. But for some people, that's just not enough, and I think what they would rather do is have many of the goods and services that Americans rely on, instead of being public goods and public services, be privatized and make money off of it. 

And we've seen, you know, since the 1980s, what happens when public services are privatized and it's generally not good, you know? You take the same amount of money that the government was using to not make a profit and to provide services without worrying about a profit, and then you got to add worrying about a profit on top of it. So, by definition almost, services get cut. People are unsatisfied, and you really don't have a lot — the same level — of accountability with private companies that you do with the federal government, you know as public entity.

David: All right, well, let's take a look at not just what the messaging has been, but the actions taken in the new administration. Just to, again, set the scene here, we've seen either substantially downsizing agencies or attempts to eliminate them. We've seen some firing of individual high-level appointees. We’ve seen large scale termination of employees who are in that probationary status that you mentioned. Employees who worked on DEI initiatives have been put on administrative leave or otherwise departed. Then there have been some employees who have had actions taken against them based on specific cases, specific investigations, specific projects. And of course, there was the fork in the road email offering deferred resignation, and finally, the expanded VERA, the voluntary early retirement authority.

That's a lot. A lot of different items to ask you one question about, but with the background that you've talked about, regardless of policy, regardless of motivation, what are the biggest legal issues from your perspective that these approaches raise thinking about employment-related law in the federal system? 

Suzanne: Right. Well, one of my favorite movies of all time is The Big Lebowski, and one of my favorite quotes is, you know, “There are rules, Smokey.” There are rules here in the federal government. The federal government is certainly able to terminate its employees. I have worked on behalf of federal employees for the past 12 or 15 years, because federal employees are always getting fired for some reason or another. There's plenty of authority to do that. There's plenty of authority that already exists to do large scale reduction in force, RIFS. There is a way to go about doing things that has been established with good reason by Congress and by OPM for many decades.

And so, some of those are, for example, the Federal Service Labor-Management Relations Statute, which is Chapter 71, 5 USC 71. That's what governs federal employees, their unions in that relationship with the government, union contracts, union intimidation, changes to conditions of employment without following the contract. Those are all really top of mind right now for a lot of folks who are otherwise protected by law, and that law is just being run roughshod over.

Secondly, we have the Civil Service Reform Act that establishes merit system principles and prohibits, you know, prohibits prohibited personnel practices, right? We call them PPPs. That includes political coercion, retaliation, hiring based on loyalty. These are all categories of things that have been tried before in the past by presidents and have found to not work for Americans. Americans have found this doesn't give us an efficient federal service. This gives us a very inefficient federal service to have people hired and fired constantly based on political wins. And so, you know, there are violations of the rules that are there to protect Americans and federal workers from this sort of political coercion.

There's also rules that protect federal workers from discrimination. Title Seven, the EEOC, ADA, and then also whistleblower protections — federal employees who have spoken out when they see fraud, waste, abuse and violations of the law are protected, allegedly from retaliation for doing that. And when you mentioned earlier people getting fired for their work on particular cases or their work on particular things that this president or Elon Musk doesn't particularly like, they're supposed to be protected from that for this exact reason. I mean, everything that's happening right now is exactly why these laws are in place, and yet, you know, they're able to, you know, they're trying to bypass them at this point. 

David: So, you know, there's definitely a combination, right, of statutes, collective bargaining agreements, traditions, norms. Starting outside the union context and talking about non-probationary kind of civil servants, what kind of remedies are available to them if there is a PPP, to pick up a new acronym?

Suzanne: Yes. So, if the Merit Systems Protection Board finds that an employee has been fired for something known as a prohibited personnel practice, then that employee may be entitled to reinstatement to their job, back pay and interest, and, additionally, attorney's fees, which is sort of a stick that Congress put in there to say, hey, agencies, you're going to have to pay a lot of money out in attorney's fees if you don't do the right thing here. You know, it's an inducement for them to try to save taxpayer money. One of the problems I have run into in my practice and throughout time is that, when you get an agency that is sort of hell bent on doing the wrong thing, they want someone fired, and they're going to violate the merit system’s protections, in order to do that, they sort of just don't care, right? They're like, okay, well, we'll fire you all. And you know, we know it's going to take five years for this case to wind its way through the process, and then at the end of it, five years later, they may or may not even be there, but now the American taxpayer is paying for this person's five years of back pay, you know, plus the interest, plus all the attorney’s fees that went into this. 

And there was a good example of that, actually, that took place recently at the FLRA. So, under the first Trump administration, under the first term, he issued these executive orders, and one of the executive orders directed agencies basically to break the law in bargaining with their unions. And so, the VA ended up terminating a bunch of folks, and the VA’s union, AFG, filed and said, hey, these people deserve their back pay. They deserve to come back to work. The FLRA was defunct. It hasn't had a general counsel there for eight years now. There was a small period of time when a woman named Charlotte Dye was able to serve as acting general counsel, and so she was able to settle this case. And when I was nominated as general counsel for the FLRA, I was facing questions about this in Congress. Why was the VA paying so much money to these people? Why was it so expensive for the, you know, it doesn't — why would American taxpayer dollars be, you know, paying all this money? It's like, well, because they didn't follow the law. And the reason that these penalties exist is so they are induced to follow the law.

So, that's a long way of answering your question. 

David: It's a very comprehensive one, and that's what we're looking for here. I would say, on the subject of attorney’s fees, right, I think, as Tess alluded to at the beginning, when we're talking about the federal workforce, we're not exactly talking about the most highly compensated group of people out there, and they may not have the funds to support, or they might not have, you know, other resources to support litigating against the government, litigating their claims. So, providing for attorney’s fees in your experience, does that increase access to legal representation? Do you seek an outcome? 

Suzanne: Yes, yes, absolutely. And not only that, but the courts have consistently found in this area that the attorneys will be compensated at the rate at which their comparators are. So, the folks who work in the big white shoe law firms — the big folks who are bringing in $700, $800, $900 an hour, versus, you know, the little guys out there, like me, who don't charge their clients nearly that much — they can apply for fees and get fees at the higher rate in order to — and I think that's by design — so that the folks seeking representation in this area do have access to good attorneys who are willing to do that work.

David: Excellent. So, you know, we'll talk about, you know, some other classes of employees in a bit, but one thing we've seen a lot is the use of administrative leave lately. As a general matter, you know, in your experience, before recent events, what are the parameters of administrative leave? What does it mean to be put on administrative leave? Why is someone put on administrative leave, and how long can that go on for? 

Suzanne: So, administrative leave in the federal sector is probably like in most places, a temporary, paid absence from duty, and it's used for a wide variety of reasons. One of the most common ones is brief, you know, brief absences for agency convenience. So, that's a short period of time. It could be a few hours. It could be a few days when the agency is unable to function. Employees are unable to come into work due to circumstances beyond their control. And like a big example of this would be what's happening in Los Angeles. What happened in Los Angeles in January? Federal government work sites were affected by the wildfires, right? But, you're not having people come in during that time, and you're not having them use their paid leave during that time. So, they are granted, you know, agency administrative leave for a weather emergency and office closure. It’s done for blood donations, voting, things of that nature.

The second, you know, most common sort of way that we see administrative leave used is when it's a management-directed investigation. There is an allegation against an employee for misconduct or a serious concern. It might have occurred on duty. It might be something that's happened in their own personal time. And the agencies are going to put them on investigative administrative leave so that their presence at work doesn't compromise workplace safety, the investigation itself, or any other thing. And those management directed investigations are actually limited. That leave is limited to 10 days. And that's an OPM rule that was passed actually under President Biden, just more, you know, more, kind of recently. 

And then sort of the third category for administrative leave in the federal sector is non-disciplinary reasons. You have your clearance review, you know, you got to go through some security clearance questions. There's a fitness for duty assessment, or there's a pending determination, you know, sort of related to your employment status. 

David: Thank you. 

Tess: So, this all kind of raises a whole host of questions, both because of the huge number of federal employees who've been put on administrative leave thus far in the first few weeks of the Trump administration, and the sort of lack of any stated reason for doing so that sounds in anything you just said, right? So entire agencies, essentially, when we think about, for example, USAID being put on administrative leave for an indefinite period. I guess one question is, what recourse do those employees have when they're in that status? But kind of zooming out a little bit, if we have an entire agency worth of employees on administrative leave, so not performing their duties but still getting paid, isn't that a problem in terms of Congress having appropriated money for them to do certain things and authorized programs that they expect to be carried out, but yet, they are told, essentially, stand in place, don't work, and we're going to keep paying you while we figure out what to do next.  

What do we make of all of that? And is there any recourse? 

Suzanne: Much of the recourse that federal employees are offered is based on the severity of the job action taken against them. And so, since I can remember, the federal agencies have pretty wide latitude to put people on leave for different things, but the way that this is being done is clearly not what administrative leave was contemplated for, right? This is something well beyond anything that anybody's ever seen.

 It does seem to me to be unconscionable. It does seem to me to be intolerable, as an American taxpayer, that we have agencies full of people who are not servicing their mission. They're not servicing American or our allies or any of the things that we were doing, and they're also getting paid. I'm not sure how that's efficient, right? I'm not sure how that, in the parlance of the federal sector, promotes the efficiency of the federal service, right? I just don't see it.  

But in terms of remedies and recourse, there are a few creative lawsuits out there that are trying to get some attention to this. I'm not sure about the congressional appropriations question, how that's going to be received by courts. On the one hand, the agency has broad discretion to use administrative leave or not, but on the other, is the agency really doing it, or is this coming from, you know, the federal executive and is this an impermissible and pretextual use of administrative leave? These are very novel questions, areas of law that we haven't really fleshed out before, so it is interesting to sort of watch them play out right now.

David: It sounds as though, you know, a lot of what we all expected about administrative leave is less grounded in statute than in either tradition or executive order. Is that accurate?  

Suzanne: Yeah, yeah. Or OPM rules, you know, the Federal Register, and, you know, the OPM has a lot of latitude to sort of shape the contours of its tools. And one of its big tools is administrative leave, yeah. 

Tess: So, another big tool that we've heard a lot of discussion about, and has already been the subject of executive orders, White House fact sheets, et cetera, is another three-letter acronym, the RIF, the reduction in force. And, you know, it strikes me that a lot of what we're seeing through these unprecedented, broad administrative leave actions are actually an end run around a reduction in force, but that may well be coming too. And you know, the president's executive order, in fact, has instructed that it is coming. 

So, what is a RIF, if you can unpack that a little bit for us, and can you give us a little bit of a flavor of some of the processes that are supposed to be followed when a RIF does occur? Because this is something that happens on occasion, right? It's not unprecedented for there to be a RIF, but the kind of path we're on now is an unprecedented one. So, what should it look like, and what is it when it is done the way it's supposed to be done? 

Suzanne: Yeah, RIFs are a tool that the federal government has when the mission changes, the mission of the agency is changing. Either Congress has directed it to change, or, you know, some other factors come into play and, you know, the government that had a location in Egg Harbor, New Jersey, now needs the location to be in, you know, Kansas somewhere, and so, you know, these people, unfortunately, are no longer needed where they're at. So, we're going to do a reduction in force — RIF stands for reduction in force. 

But there are strict rules when it comes to a reduction of force, and they're established by OPM, and they're based on Title Five of the U.S. Code, which is what governs, you know, most employees. And the key rules for a RIF are, you know, they have to define, like, a competitive area, like, a specific geographic area, or an organizational unit, where the RIF will apply. It has to be sort of narrowly tailored to fit the goal of the RIF. The RIF has to have a goal, right? And then you want to look at the competitive levels, like, employees who have similar positions, qualifications and pay will be, you know, put, sort of put into groups. And then they'll be ranked, and that ranking is based on tenure, if their career or career conditional. Veterans’ preference comes into play with a RIF. Veterans who have, you know, preferential points are ranked higher in a RIF. They will have the opportunity to stay in service longer. The service computation date — if you've been in service longer, you might have more rights during a RIF. You might be placed higher on the RIF list. And your performance rating. So, if you have a very high rating, you will be placed higher up on the list compared to somebody maybe who doesn't have as high of a rating as you do in the job.

And there are notice requirements, so employees who are subject to a RIF have to have at least 60 days’ notice before they are separated or demoted, because RIFs don't always mean separation. They might mean that folks are reorganized and put into different positions, and sometimes it might be a demotion. If you are RIF-ed, you might qualify for severance pay or — and also unemployment benefits as well.  

And then, if the RIF is not followed, if employees think that the RIF rules were not followed correctly, employees or their union might be able to appeal that, either to the MSPB or via their collective bargaining agreement.  

David: So, it sounds like under a variety of these circumstances, there may or may not be recourse by the employee in terms of getting their job back, depending on their status, but there is going to be a difference in what's available to them if they quit, as opposed to getting terminated?

Suzanne: Yeah, absolutely. And employees who are RIF-ed also have rehire rights, and they could get, you know, qualified to come back to the federal service in a more preferential way than somebody who is new to the federal service, for instance. So, yeah, the whole fork in the road thing to me was sort of just, it just looked to me like DOGE and Trump saying, we don't, you know, RIFs are complicated. RIFs are hard. We don't want to have to do all this. We don't want to have to sort through all this information. We just want to, like, fire, fire, fire. 

So, they know they're not allowed to do that. So, I think what the fork in the road was them saying, like, hey guys, would you mind, like, just leaving so we don't have to RIF? And apparently some people did. They made Musk’s and Trump’s job easier, I guess. 

Tess: It sure does look like an end run around a RIF, although we're, as we were mentioning before, likely to see actual RIFs upcoming as well. So, I think, as with several of the other specific mechanisms you've mentioned, it's sort of a watch this space for what kind of litigation ensues, whether procedures are actually followed or not. And I think it's important for our listeners to keep in mind that there are ways to do some of this lawfully. So if they do undertake a RIF and they go through the steps they're supposed to go through, it is possible that we could see sizable reductions in force that, you know, do survive challenge, but it's also possible that, as you were just saying, things that are pretty clearly a naked end-run around those procedures end up getting challenged, and I think that's the space to watch. 

Speaking of which, let's go back to probationary employees for a minute, because I think that's top of mind for so many, given we've already seen terminations of probationary employees on a pretty wide scale, but likely a lot more to come, unfortunately. You talked through what is a probationary period and how it can be different for different types of federal employees. Can you give us a little bit more flavor — I should note for our listeners, you wrote an excellent explainer on this for Just Security, published January 31, we highly recommend everyone read that as well — can you give us a little bit more flavor here on what probationary employees can be terminated for? Are there reasons other than poor performance that probationary employees can be let go on the one hand, and on the other hand, are there impermissible bases for letting go of a probationary employee, you know, putting the performance issues aside? 

Suzanne: Absolutely, absolutely. You know, you're never going to hear from me that it's hard to fire federal employees, because I deal with people who've been fired all the time. I think that's just, you know, a propaganda talking point, because, you know, as long as the rules are followed, yes, probationary employees can be terminated for poor performance, like you mentioned, but also misconduct and any other reason deemed to affect the efficiency of the federal service. That's sort of the overarching concern at all times, is whether or not keeping this person on or letting them go, how does that promote the efficiency of the federal service for the for the American people? 

But terminations cannot be based on impermissible grounds, such as discrimination on all the big categories that we've heard before — race, sex, religion, national origin, age, disability, also political partisan reasons and marital status. I don't know why it's those two, but those two are specifically carved out as things that probationary employees can challenge. If they've been terminated and they believe it was based on political partisan reasons or marital status, they can challenge that, and it can be overturned. And that did happen during the first Trump administration. There was a woman who worked for an agency, and she had previously worked on the Hill, and she had worked for Democrats on the Hill, and then she was brought into an agency in a position where she was on a probationary basis, and the head of the agency terminated her, and she went to the MSPB. Even though she was on probation, she went to the MSPB and she said, I think this is because I'm a Democrat. I've worked for Democrats. My husband is a local elected Democrat where I live. And the MSPB said, yeah, you know, this looks like a politically motivated termination and that job action was overdone, was overturned.  

So, you know, there are permissible, you know, ways to get rid of people if they're on probation and they are not working out. And then there's the pretextual ones that are impermissible, that our laws protect us from. 

David: And just to be clear, are the rules that you just described, are those within the executive branch rules, regulations, administrative procedures, or is that a statutory protection that probationary employees get?

Suzanne: Statutory and rules-based.  

David: So, if the MSPB were to rule against the probationary employee, they still have some right of appeal if the MSPB didn't follow its own procedures correctly? 

Suzanne: Right, so if folks who are facing actions, and they go to the MSPB, they first will have their case heard by an administrative law judge who will make a determination and generally, the party that loses at that point will appeal it to the board itself. The board itself is comprised of, well, traditionally, comprised of three members, is currently comprised of two members. In about 13 days, it will be comprised of one member and they will not have a quorum. But that board hears the case, it makes a decision, and then at that point, under certain circumstances, folks can appeal to the Federal Circuit. 

David: Do we know what happens if the board doesn't have a quorum for a prolonged period of time?  

Suzanne: Yeah, because we've seen it happen before. It has happened before, and what happens is a giant backlog, giant backlog of cases. They don't go anywhere. 

David: And what's the status of an employee who, you know, has made an appeal to that board, but that board doesn't exist functionally? 

Suzanne: Right, this is the case for anybody who's facing an action, and their appeals are going to either to the MSPB or the FLRA. The courts look at the Civil Service Reform Act and they say, wow, this is a super broad statute that covers everything that has to do with federal employees. Therefore, we are preempted. We cannot get involved until you, the employee, exhaust your administrative remedies. So, administrative remedies have to be exhausted, which means you have to go through, you’re channeled through the MSPB or the FLRA.

When those agencies are defunct, the whole system breaks down, and nobody gets to go anywhere. And unfortunately, we don't have a right to injunctive relief. There's not a wide right to injunctive relief. And you can kind of see why. You have the sovereign nation of the United States as the employer. You have Article III judges who sort of feel like there is a constitutional balancing that needs to be taking place. And so, I think that judges are sort of disinclined to tell the federal government, as an employer, no, you have to keep this person on the payroll until we determine whether or not it's okay for you to fire them. The law is written the other way around. You will generally lose your job, you will lose your benefits, you will lose your pay, and then the back pay act is what kicks in to make you whole in a retrospective way down the line. But that's a very cold comfort, I understand, to folks who are facing job actions determinations at this moment, right?

David: Right, so, to sum that up, I guess in part due to the court’s deference to administrative agencies, which has survived in at least one context, a probationary employee may eventually be able to recover their job, but they will not continue to draw pay in the interim?

Suzanne: Right, correct, correct. 

David: Okay, thank you. 

Suzanne: Yeah, probation, every, all of them, anybody. You know, most people will not get an injunctive relief from a court in these sorts of cases. 

Tess: So, we're seeing unprecedented actions taken against federal employees across the board. We're also seeing challenges to many of these actions already. We're seeing challenges to the executive order on reclassification of career employees, which was previously known as Schedule F, featured prominently in Project 2025 and is back. We've seen challenges to the deferred resignation program, to RIFs, being undertaken without following the required procedures that you just laid out for us, to DOGE accessing sensitive data of employees, to the termination of the head of the Office of Special Counsel, the Special Counsel. 

What do you think are the most important legal developments to keep an eye on, given how much is going on in so many places? And, you know, what are you personally watching as some of the most important developments in terms of what's going on with the federal workforce? 

Suzanne: I'm concerned about federal employees who are not able to access the judiciary because of the actions of the executive. And I think that when this is all over, hopefully as a country, we will take a look at the laws governing the civil service, and we will try to find ways to correct this, as we have done in the past, as we did after the spoils system, as we did after the Vietnam War and the Watergate scandal. So, I hope that there's a correction coming.

But I am very, very closely watching the unions and the employee groups challenges to these laws to see if they will be channeled through the administrative process and then, like, what the backlogs and things are going to look like there. During the first Trump administration, when he issued the three executive orders, I myself was lead counsel on behalf of 13 labor unions. There were a couple of other labor unions, the, you know, sort of the bigger ones, AFGE and NTU. We were all combined into the same lawsuit, and we got a great decision from at that point in time, Judge Ketanji Brown Jackson at the DC District Court. She really understood it. She really got it. It was a great decision. We were appealed to the DC Circuit, and we were told, no, you're channeled. You've got it. You know, it doesn't matter that you're challenging the executive’s authority to, you know, wield power, doesn't matter if it's an ultra vires action or a constitutional action, just by virtue of the fact that you are a labor union, you are channeled through this process. So, you know, that was the law that that was sort of established six years ago. And I'm curious to see if any of the circuits are going to break from that.  

Tess: So, even when the breakdown of the administrative state is by design, it's still not possible to go straight to Article III, even though that would be the only sort of, you know, check and balance that you could still see functioning here, and that's why you're pointing us to the other political branch, Congress, needing to take a harder look at these laws if there comes a point in time in the future when the breakdown of that administrative state is something that they want to remedy. It's hard to see that happening right now with this Congress, but perhaps that's something down the road that we could see coming out of this mess.

Suzanne: And it's hard to see it happening with the Supreme Court as well. And that's another thing that I as a practitioner in this area of law am deeply concerned about, is I understand that we have union members and individual federal employees who really want lawsuits brought on these issues, but at a certain point in time, the practitioners in this area of law are going to have to make a really hard evaluation and say, okay, we survived four years of Trump. We can rebuild it, or do we take it to the Supreme Court of the United States and create some sort of law or precedent that is going to affect us well beyond any sort of Trump term? And it's going — people are going to have to show restraint. Lawyers, practitioners, appellants, they're going to have to show restraint if they don't want to create really bad case law with a Supreme Court that has shown its own sort of distaste for the traditions of precedent and, you know, legal things that we've all relied on in the past. 

David: Look, you know, we asked people onto the podcast who have the frontline experience to give this kind of perspective. So, thank you for that. We've been talking a lot about this from the perspective of federal employees and their unions. I just want to remind everyone, and this may be a subject for another episode, that we started out this episode by talking about the way that everyone in the country benefits from federal employees. There may be other potential litigants out there if this is going to be addressed in the courts. And as you say, of course there's, there's always the potential for legislation in response to whatever the consequences of this current situation.

Suzanne, thank you for helping us understand what just happened and giving us context to watch for what comes next.  

And again, to the audience, we hope you found this informative and supportive. If you need legal advice, this podcast is not a substitute for talking with an attorney. 

Tess: “What Just Happened” is a mini-series of the Just Security Podcast. This episode was co-hosted by me, Tess Bridgeman and David Aaron. It was produced and edited by Paras Shah with help from Clara Apt.  

Special thanks to Suzanne Summerlin. You can read all of Just Security’s coverage of the Trump administration, including Suzanne’s analysis, on our website. If you enjoyed this episode, please give us a five-star rating on Apple Podcasts or wherever you listen.

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