Democrat Robert E. Primus, fired Aug. 27 from his Senate-confirmed seat on the Surface Transportation Board (STB) by POTUS 47, wants his job back—and he is suing the Republican POTUS, as well as the STB and its Republican Chairperson Patrick J. Fuchs to make it happen. Primus alleges the firing is illegal.
His alignment with rail labor on issues over which the STB has no jurisdiction—carrier employment levels and implementation of operating strategies such as Precision Scheduled Railroading, plus his “thank you for letting me represent you” comment to the largest rail union—suggest a conflict with impartial execution of STB responsibilities. This only partly explains the fine kettle of fish in which Primus finds himself, although his firing did not provide a reason.
Primus’ additional hurt flows from Union Pacific’s (UP) desire to merge with Norfolk Southern (NS) to create the United States’ first seamless transcontinental railroad—a transaction the STB has exclusive authority to approve or deny. Primus’ sole dissenting vote on a previous rail merger—CPKC—and his publicly stated opinion that mergers stifle competition, harm supply chain stability, and throttle rail safety, may be more significant to his present circumstance. Indeed, POTUS 47, who fired Primus, has been priming the pump in favor of the UP+NS hook-up. Notably, Primus has not stated an opinion on UP+NS; and, again, no reason was provided for his firing.
Perceptions of UP involvement in Primus’ termination are buoyed by UP CEO Jim Vena’s Oval Office cheshire smile during a photo-op with POTUS 47 ahead of extracting a “sounds good to me” endorsement of the merger. That UP is on the hook for a $2.5 billion break-up fee should STB deny the merger feeds perception that UP is exercising its political clout. At the White House level, that clout is stuff of legend.
President Ronald Reagan’s Transportation Secretary Drew Lewis became UP chairperson and CEO. Andrew Card, who was President George H.W. Bush’s Transportation Secretary and then President George W. Bush’s chief of staff, became a UP Board member, as did Republican Vice President Dick Cheney. A UP “funeral train” transported the casket containing remains of the elder Bush from Houston to College Station, Tex., for burial.
Unfortunately, Vena’s Oval Office tête-à-tête with POTUS 47 has tossed the independent (from the Executive Branch) STB into a thorny briar patch and will make a Primus return a sticky wicket should courts so order. As explained in a separate commentary, there is no evidence a sitting member of the STB has been pressured by UP or POTUS 47 on how to vote.
Primus is likely to be asked to recuse himself from participating in a UP+NS merger proceeding. An appearance of partiality with regard to UP+NS arises from his having being fired by a POTUS supporting the UP+NS merger, and suspicion that the CEO of one of the merger applicants (UP) may have urged his firing.
Peculiarly with regard to Primus’ situation, the union with which he is alleged to be most closely aligned—the Transportation Division of the International Association of Sheet Metal, Air, Rail and Transportation Workers (SMART-TD)—has come out in support of the UP+NS merger.
Primus is represented in his lawsuit by the non-profit Democracy Forward Foundation that has been active in challenging POTUS 47 Executive Orders and policies.
Fired Democratic members of the Federal Trade Commission (FTC) and National Labor Relations Board (NLRB) earlier filed similar lawsuits as filed by Primus. Although those petitioners were granted by a federal district court injunctive relief to nullify the terminations and allow their return to office, the Supreme Court delayed the effectiveness of the injunctions pending further litigation—the law not settled as to court authority to order reinstatement.
In those cases, the Justice Department (DOJ), which supports the firings, argued that even if the POTUS 47 terminations are unlawful, courts have no authority to order reinstatement.
Primus, as well, argues his termination unlawful—that the STB is independent of the Executive Branch and that the STB’s statute provides for termination only where “inefficiency, neglect of duty or malfeasance in office” is shown—none of which was cited in his firing.
If Primus’ case follows the path of the FTC and NLRB cases, where injunctive relief has been delayed pending finality of litigation, Primus could be on the outside looking in well into 2026. And if he does return to work at the STB, he would, as explained earlier, face demands to recuse himself from participating in a UP+NS merger proceeding.
Further muddying Primus’ STB future is the government shutdown. The United States Courts website advises that the Judiciary has sufficient funds “not dependent on a new appropriation” to remain open only through Oct. 17. However, if government has not reopened by then, federal courts and agencies may operate under terms of the Anti-Deficiency Act that allows essential work to continue during a lapse in appropriations. This could include Primus’ request for an injunction allowing him to return to work.
STB and Fuchs are being sued because they are enforcing the Primus firing by denying him access to his office and STB files. Fuchs, as chairperson, is the agency’s chief administrative officer.
As with the FTC and NLRB cases, the STB and Fuchs will be represented by DOJ attorneys who can be called back to work in emergency situations (but pay would be delayed until after the government reopens). STB attorneys may similarly be called back to work if required to assist in defending the STB.
If a formal UP+NS merger application is filed as expected (Oct. 29 at the earliest), a timetable proposed by merger applicants provides for a final STB decision in early 2027.
However, the Board has proposed a revised version of the schedule, which could shorten the time for completion of the evidentiary record by months, perhaps allowing a final decision before the end of 2026. Importantly, that is only a proposal at present, and expect it to be opposed by CPKC and other stakeholders.
The five-member STB currently has two vacancies, including Primus’ now empty seat. Looking to 2027 (or late 2026), additional seats could become empty. Conceivably, the STB could consist of just one member by 2027—and since the agency’s statute has no quorum requirement, a merger could be decided by two or even a single STB member. That is highly unlikely.
Here is the current STB member consist (note that the statute allows members whose term expires to remain in office up to 12 additional months if a successor has not been Senate confirmed):
- Republican Fuchs, age 36, is serving his second and final term that expires Jan. 14, 2029.
- Republican Schultz, age 53, whose first term expires Jan. 11, 2026, and who has been renominated by POTUS 47, awaits Senate confirmation to a second and final term expiring Nov. 30, 2030.
- Democrat Karen J. Hedlund, age 76, whose first term expires Dec. 31, 2025, awaits nomination (followed by Senate confirmation) to a second and final five-year term that would allow her to vote in 2027. She could become the oldest member to be confirmed in the 138-year history of the STB and its Interstate Commerce Commission predecessor. There has been speculation she may retire. If she does, another Democrat could be nominated to succeed her. Notably, when asked by a shipper if there might be another rail merger (following CPKC) she responded, “Bring it on.”
- Recently nominated by POTUS 47 to a vacant seat—formerly held by Democrat Martin J. Oberman, who retired—is Republican Richard Kloster, age 67, who awaits a Senate Commerce Committee hearing into his qualifications prior to a Senate confirmation vote for a first five-year term. The reason a Republican is nominated for a previously Democratic seat is the statute permits the political party of the POTUS (now a Republican) to hold a politically partisan majority of seats on the five-member STB.
- If Primus, age 55, is permitted by courts to return to the STB, his second and final term expires Dec. 31, 2027. Otherwise, a vacancy exists for another Democrat to be nominated by POTUS 47.
(Although the STB is closed as part of the government shutdown, the compensation of sitting Senate-confirmed members—Fuchs, Schultz and Hedlund—is tied to their official position and not annual congressional appropriations. Thus, they remain on the job.)
Railway Age Capitol Hill Contributing Editor Frank N. Wilner, a former STB chief of staff and career railroader, is author of “Railroads & Economic Regulation,” available from Simmons-Boardman Books, 800-228-9670.
