By Deborah Hopkins, July 15, 2020

Here’s a hypothetical. Let’s say you have a U.S. President who is in office during a global pandemic, and that president gives an interview to a news outlet and says that the country is in “a good place” with how it is handling said pandemic.

Now let’s say that there’s a high-level career federal employee who works in infectious diseases who makes a statement to a different media outlet that goes something like this: “As a country, when you compare us to other countries, I don’t think you can say we’re doing great. I mean, we’re just not.”

Of course by now you know I’m not speaking in hypotheticals. As it goes with media sensationalism, one of the stories over the past few days surrounds the legality of the President firing Dr. Anthony Fauci, the head of National Institute of Allergy and Infectious Diseases (NIAID). Most FELTG readers are probably aware that Dr. Fauci’s statements on the COVID-19 pandemic have differed somewhat from those of the White House.

The question that is being asked on cable news, in media publications, and perhaps around dinner tables across the country: Can the president have Dr. Fauci fired?

The answer, based only on the evidence available to the public, is probably not. The President himself doesn’t have the authority to fire Dr. Fauci, who is a Title 42 employee and not a political appointee. But were the President to hypothetically order an official at HHS to fire Dr. Fauci, in order for the removal to be legal there would have to be cause — Dr. Fauci would had to have engaged in removable misconduct or poor performance.

Disagreeing with a President most likely does not fall into poor performance or misconduct. In fact, it is a prohibited personnel practice to make an employment-related decision because of a career employee’s political activities. While it may be acceptable for political appointees to be removed for differing opinions than those of their president, the fact that Dr. Fauci does not agree with the President about COVID-19 is NOT a valid reason to fire him.

We don’t know the details of Dr. Fauci’s work at NIH, so we can’t speak specifically to his performance or conduct on the job. However, misconduct, loosely defined, is the violation of a valid workplace rule.

Is a statement made in contradiction with the President misconduct? Probably not. Dr. Fauci doesn’t appear to have violated a workplace rule, as he has authorization to speak to the press about NIAID matters.

What about the list of the times Dr. Fauci “has been wrong on things,” recently compiled by White House. Do these statements rise to the level of poor performance? Without seeing Dr. Fauci’s performance plan, I cannot say for certain.

If Dr. Fauci is fired for any reason, whether it appeared to be legally valid or not, he could appeal his removal to the MSPB and let the Board (if we ever get one, that is) decide whether he engaged in misconduct or poor performance.

In case you’re wondering how Title 42 employees have civil service protections, here’s a brief lesson from Lal v. MSPB, Fed. Cir. No. 2015-3140 (May 11, 2016). Title 42 says that individuals may be “appointed” under Title 42 without regard to the civil service laws. A different statute gives agencies dealing with certain non-Title 42 employees the authority to “appoint[ ]…and remove[ ]… without regard to the provisions of title 5…” Reasoning that Congress saw a significance in the latter situation to include the authority “to remove” and that Congress did not specifically include the authority “to remove” in Title 42, Congress did not intend for Title 42 removal authority to be without regard for civil service protections. So, in sum Title 42 employees are hired under special authority but when it comes to being fired, they get the same protections as most of you in the FELTG Nation. And that includes Dr. Fuaci.

Interesting times, aren’t they? I’ve got some ideas for follow-up discussion and would love to incorporate your thoughts and questions into the content. So, what’s on your mind? Hopkins@FELTG.com

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