On January 29, 2020, the U.S. Department of State White House Coronavirus Task Force was created. Over the past two months, its members have been present in the living rooms of millions of Americans on a daily basis, giving briefings on the status of the COVID-19 pandemic, and the Federal government’s response to it.
One of its most visible, and well liked, members is Doctor Anthony Fauci, who has been the Director of the National Institute of Allergy and Infectious Diseases since 1984.
Recently, there has been some very public tension between Dr. Fauci and President Trump. Hours after Dr. Fauci appeared on CNN on April 12th and stated that more could have been done by the Administration to prevent the spread of COVID-19, President Trump, in one of his ubiquitous tweets, retweeted a user who said it was “Time to #Fire Fauci.”
But, can he?
There is no question that President Trump can remove Dr. Fauci from the Task Force – there is nothing preventing him from doing so. But, can he simply fire Dr. Fauci for expressing an opinion he doesn’t agree with?
The answer is: “No.”
Dr. Fauci is a career member of the Senior Executive Service (SES), a position classification created by the Civil Service Reform Act of 1978, and which went into effect under President Carter. Under Federal law, he can be fired if he is found to have engaged in “misconduct, neglect of duty, malfeasance, or failure to accept a direct reassignment or to accompany a position in a transfer of function”, is or to be “less than successful [in his] executive performance.”
However, prior to being terminated for performance or conduct, Dr. Fauci must be given the due process protections offered by 5 U.S.C. § 7543(b), which provides that he is entitled to:
- at least 30 days’ advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action;
- a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;
- be represented by an attorney or other representative; and
- a written decision and the specific reasons therefor at the earliest practicable date.
In the unlikely event Dr. Fauci has to participate in this process, he has, in most instances, appeal rights to the MSPB, and the Federal Circuit.
Since Dr. Fauci’s appearance on CNN, it looks like cooler heads have prevailed.
President Trump has stated publicly on numerous occasions that he has no intention of firing the good Doctor. Despite the President’s assurances, and in an interesting twist in an election year, Massachusetts Democratic Senator Ed Markey has indicated he will nevertheless be introducing legislation which would further limit the President’s ability to terminate Dr. Fauci’s Federal employment.