Will civil service protections hold up against RFK Jr.’s threats to the federal public health workforce?

The Food and Drug Administration in 2020 pulled its emergency use authorization for hydroxychloroquine to treat COVID-19 after clinical trial results found it “showed no benefit for decreasing the likelihood of death or speeding recovery.” 

Robert F. Kennedy Jr., President-elect Donald Trump’s pick to be Health and Human Services secretary, recently promised retribution against federal public health employees that could include individuals who were involved in that decision. 

Kennedy wrote in an October social media post that FDA employees who are engaged in “aggressive suppression” of hydroxychloroquine, as well as raw milk and chelating compounds, should “1. Preserve your records, and 2. Pack your bags.” 

FDA’s website currently warns that drinking raw, or unpasteurized, milk can cause foodborne illness and reports that between 1998 and 2018 there were at least 202 outbreaks linked to such milk that caused 2,645 illnesses and 228 hospitalizations. 

While FDA has approved the use of chelation, a process to remove metals and minerals from the blood, to treat lead poisoning and iron overload, it has cracked down on companies that have erroneously claimed it can treat or cure autism. 

Kennedy may want to clear out the FDA workforce, but job protections for career federal employees prevent him from easily doing that. 

“A secretary just can’t come in and start firing,” said Kevin Owen, a partner at the law firm Gilbert Employment Law. 

Still, stakeholders are worried about what Kennedy, and the incoming Trump administration as a whole, could attempt to do in order to remove civil servants. 

“There's one answer if the head of the agency is following law and regulation, and then there's another answer if they pursue an ‘act now, defend it in court later’ kind of approach,” said Jacqueline Simon, the policy director of the American Federation of Government Employees. “That's what puts everybody on such uncertain ground.” 

Individual Removals 

Stephanie Rapp-Tully, a federal employment law attorney, explained that in order to fire a government employee, an agency generally has to provide the individual with a notice, rationale and allow the worker in question to respond, after which an official makes a decision on the removal. 

“As it stands right now, terminating a single employee kind of unilaterally without going through that process is not possible and would result in litigation,” she said, noting it would be unusual for a cabinet secretary to be involved in this process. 

Likewise, Simon said that “suppression of psychedelics,” an action Kennedy in his October post said he would punish civil servants for doing, would not stand as a rationale for removal before the Merit Systems Protection Board, which adjudicates federal employment-related disputes. 

“If [the employees] are performing duties that are required of them under the law, then that would not hold up in an arbitration and it would not hold up at the MSPB,” she said. “Now, we're all assuming that there will actually be an MSPB that will be able to adjudicate.” 

AFGE represents employees from HHS and five of its agencies, including FDA. The National Treasury Employees Union, which represents workers from eight HHS agencies, declined to comment. 

Trump campaigned on reviving Schedule F, an effort that ultimately failed at the end of his first term to strip job protections for potentially tens of thousands of career federal employees — making them easier to remove. 

The president-elect plans to nominate Johns Hopkins surgeon Marty Makary to be FDA commissioner. During the pandemic, Makary criticized vaccine mandates and the length of school closures. In a 2021 opinion piece for Fox News titled “The FDA needs new leadership,” Makary wrote that the agency he could soon lead needs a cultural change: “The status quo is defined by counterproductive rigidity and a refusal to adapt.” 

Agency Reorganization 

While Kennedy would run into roadblocks singling federal employees out for removal, he does have greater latitude to reassign them, especially members of the senior executive service. 

“[Senior executives] can be moved around, they can be sidelined…they have less recourse [than career civil servants],” Owen said. “As a general rule, the higher up the management chain you go, the less protections you have.”

Owen emphasized that it is normal after presidential transitions for senior executives to be moved around based on the new administration’s priorities. But Kennedy could reassign HHS staff to roles that are at odds with the agency’s past work. 

“If you’re going to prioritize [then] you’re going to have to move executives over there to help that mission. Maybe [Kennedy] wants to fast track raw milk. He may want to set up internally within the FDA a raw milk review board to propose policy and come up with ways that raw milk can hit the shelves,” Owen said. “But you’re going to have to have people to do that. I'm not sure we're going to see as much of the ‘you were against raw milk, therefore you're fired.’” 

If employees feel they are improperly pressured into making certain policy decisions, Rapp-Tully said they can report it to the Office of Special Counsel, which protects civil servants from prohibited personnel practices and receives whistleblower complaints, or the HHS inspector general. 

Inspectors general conduct independent investigations of alleged waste, fraud and abuse at agencies. During his first term, Trump over a span of six weeks removed five IGs, some of whom had attracted his ire over unfavorable reports. 

On the other hand, Kennedy has argued that pharmaceutical companies have too much influence over the FDA. For example, a 2018 analysis by Science found that 11 of 16 FDA medical examiners who worked on 28 drug approvals left the agency for new jobs at, or consulting for, companies they had recently regulated. And nearly half of the agency’s fiscal 2024 funding came from user fees that are paid by the companies FDA oversees. 

Mass Firings

Kennedy said in an interview with NBC News the day after the election that in “some categories of workers there are entire departments, like the nutrition department at FDA, that have to go. They’re not doing their job.” 

Specifically, he criticized the U.S. for allowing food dyes in Froot Loops cereal that are restricted in Canada. 

The federal government can use the reduction-in-force process to layoff employees under certain circumstances such as an agency reorganization, if there’s a lack of funds or when a division is no longer responsible for a given mission. 

But removing employees who would otherwise perform work that Congress has funded could create a showdown between the executive and legislative branch. Trump has vowed to fight the 1974 Impoundment Control Act that prohibits the president from withholding appropriations due to differences of opinion in policy. 

In November, Kennedy said at an event in Arizona: "We need to act fast, and we want to have those people in place on Jan. 20 so that on Jan. 21, 600 people are going to walk into offices at [the National Institutes of Health], and 600 people are going to leave."

While it takes longer than a day to perform a RIF, the process would seem to provide Kennedy with a way to replace large swaths of agency workforces he would oversee. However Rapp-Tully warned that such an objective contravenes the purpose of a RIF. 

“It’s very difficult to have a RIF and then immediately replace the person. That is an appeal right there. That is an easy one to write,” she said. “One of the triggers of ‘this isn't really a RIF, this is something else’ is when you hire somebody immediately into that position. The idea of a RIF is that it's an elimination of a role, not a person.” 

Trump said he would nominate Stanford professor Jay Bhattacharya to lead NIH. He was a co-author of the 2020 Great Barrington Declaration that called for allowing “those who are at minimal risk of death [from COVID-19] to live their lives normally to build up immunity to the virus through natural infection, while better protecting those who are at highest risk.” Specifically, it encouraged schools and universities to have in-person classes, young low-risk adults to work in an office and restaurants to reopen. 

Bhattacharya said in a November interview with Newsmax that he supports instituting term limits on officials across NIH’s 27 institutes and centers so that there’s an “influx of new ideas.” 

Simon, of AFGE, argued the union can support its members. But she is concerned the incoming Trump administration will weaken civil service protections, impacting career employees at HHS and across the government. 

“We can protect our members’ rights under the law. We can protect our members’ rights under their collective bargaining agreement, if we're operating under a system of law,” she said. “If we're operating in a system without regard to law, then that's another subject.”