The Trump administration has enjoyed itself firing boatloads of Federal employees. The most common recourse for civil service employees who were fired for no just reason is the Merit Systems Protection Board. The MSPB essentially enforces the Civil Service Reform Act. A civil servant can only be fired for a just reason. But, since so many civil servants were fired, the MSPB is inundated with appeals.
Maureen Comey, daughter of James Comey, and her lawyers came up with a novel if risky alternative. I talked about her lawsuit previously here. They filed suit in Federal court, bypassing the swamped MSPB. A Federal court in New York agreed with Comey’s position,. The court found that since Pres. Trump cited his Article II (of the U.S. Constitution) powers, then the Civil Service Reform Act of 1978 does not apply. Ms. Comey can indeed proceed straight to U.S. district court. The CSR Act created the MSPB. If Ms. Comey was not fired under the terms of the CSR Act, then the MSPB is not her mandated avenue for redress.
This decision is similar to one reached by another Federal court in Virginia regarding another fired civil servant. See NOTUS report here.
Be Careful What You Ask For
Remarkably, in the other case, Comans v. Executive Office of the President, 25-CV-1237, 2026 WL 1132803 (E.D. Vir. April 15, 2026), Mary Comans first filed her appeal with the MSPB. As part of that action, DOJ said since she was fired by the President in reliance on his “Article II” power, then her cases did not belong with the MSPB. Later, she filed a new lawsuit in U.S. District Court. In that second action, Department of Justice then said her claim belonged with the MSPB. Yes, that is how lawsuits are lost: when the lawyers cannot keep track of their inconsistent arguments to the court. The Department of Justice is paying a price for having fired or asked to resign so many career prosecutors.
See the decision in Comey v. U.S. Dept. of Justice, No. 25-CV-7625 (S.D. N.Y. April 28, 2026) here. This is new territory for most of us. It has been decades, if not a century or two since Federal employees had the right to file suit in Federal court for a termination. This result calls to mind an old saying, “be careful what you ask for; you might just get it.”