A reinstatement push by the Justice Department’s former top bankruptcy watchdog is emerging as an early challenge to the Trump administration’s aggressive campaign to expand presidential authority over a higher echelon of the federal workforce.
Tara Twomey, the ex-director of the Executive Office for US Trustees, is one of several career Justice Department attorneys appealing their firings to the US Merit Systems Protection Board—part of a larger legal battle over protections for senior career employees.
If her termination is upheld, it could expand the president’s authority under Article II of the US Constitution to remove higher-level executive branch officers amid broader proposed cuts for the bankruptcy monitoring unit.
This dispute may boil down to whether Twomey was an “inferior officer” entitled to removal protections under the US Supreme Court’s 1886 opinion in United States v. Perkins, and if the president’s powers supersede similar shields for senior executive service level employees under the Civil Service Reform Act of 1978.
A “very big hole” in the Justice Department’s brief opposing Twomey’s appeal is its omission of Perkins, said Amy Wildermuth, a University of Minnesota visiting law professor. The absence could be strategic, but it signals a troubled path through the MSPB, she said.
Unlike 1935’s Humphrey’s Executor v. United States, Perkins hasn’t been as controversial as other for-cause shields, Wildermuth said, because an agency can usually override any decision an inferior officer makes through a more senior officer.
While Humphrey’s Executor “is all but overturned,” it’s possible that inferior officers’ removal protections won’t suffer the same fate—a key test of Perkins, she said.
“What the government’s doing right now remains a minority position even within very conservative circles,” Wildermuth said.
The DOJ’s argument is a “big swing,” she added.
Direct Influence
The senior executive service comprises high-level permanent managers who work just below the president’s appointees in nearly every federal agency. Under the Civil Service Reform Act, they received tenure protections similar to other civil servants’.
The law gives senior executive service members a property interest and due process rights in their employment.
“They help run the government’s most important agencies and programs, and because they are career civil servants they accrue a lot of important institutional knowledge,” said Nicholas Handler, a Texas A&M School of Law assistant professor.
Twomey was fired in March by Deputy Attorney General Todd Blanche, part of a larger purge that included Pardon Attorney Elizabeth Oyer, Office of Information Policy director Bobak Talebian, and Organized Crime Drug Enforcement Task Force head Adam Cohen. They and others have appealed to the MSPB.
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The administration is trying to extend the reasoning used to terminate higher level employees “much deeper into the middle layer of the federal bureaucracy,” Handler said.
That’s a dramatic change that would make even minor government decision-making more susceptible to direct political influence by the president, Handler said.
“It would diminish the competence of government officials and raise questions about whether the government is dealing fairly and impartially with private citizens,” he said.
Due Process
The Justice Department’s brief to the MSPB, obtained via a public records request by Bloomberg Law, argued that Twomey exercised significant executive power and, as an inferior officer under the Constitution, could be removed without cause by Blanche under Article II.
Any statute to the contrary, the DOJ said, “would run afoul of Article II.”
The director of the US Trustee program’s executive office sets priorities and policies, and coordinates litigation and enforcement strategies while overseeing regional offices.
Colloquially called a bankruptcy “watchdog,” the office promotes the integrity of the bankruptcy system.
Under Twomey, the office implemented cost-saving measures for creditors and aimed to increase recruitment and diversity among staff, private trustees, and judges.
The US Trustee’s office scored a major Supreme Court win last year when it challenged legal shields for Purdue Pharma LP’s Sackler family owners accused of helping fuel the national opioid crisis.
Twomey said in her brief the Justice Department violated her due process protections by removing her without cause or notice. She’s seeking retroactive reinstatement with back pay and benefits.
Perkins Debate
Thomas Berry, who leads the libertarian Cato Institute’s Robert A. Levy Center for Constitutional Studies, said it’s tricky to know how far Perkins extends due to its age and brevity—little more than 700 words, much of it quoting a lower court.
It’s unclear whether Perkins extends to inferior officers and whether removal protections can constitutionally prevent a cabinet secretary from firing them over policy disagreements, Berry said.
“In my view this is an aggressive argument by the government, but it is aligned with the direction that a majority of the Supreme Court is trending,” he said.
The Justice Department said Twomey’s role included authority over bankruptcy policy and the ability to “bind” the executive branch, meaning Congress can’t restrict the president’s power to remove her.
If accepted by the MSPB, that position that could impact a broad swath of federal attorneys and, in Twomey’s view, leave the board “powerless” to enforce Congressional removal protections. But with board lacking a quorum, some DOJ lawyers have opted to go straight to federal court.
“That position is incorrect and unprecedented,” she said in her appeals brief, obtained via a public records request. “This position invites the Board to abdicate its statutory duty to adjudicate appeals of covered employees based on a fringe theory that would render the CSRA optional for members of the SES.”
Read More: US Personnel Office Fights Ex-DOJ Bankruptcy Director’s Appeal
Ori Lev, special counsel for the nonpartisan group Protect Democracy that has sued the Trump administration over re-classifications of federal employees, warned the government’s arguments risk returning the country to the spoils system where jobs are awarded for political loyalty instead of merit and experience.
“If accepted,” Lev said, “it would serve to eviscerate the non-partisan, merit-based civil service that Congress created to serve the American people.”
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