The firing by POTUS 47 of outspoken Surface Transportation Board (STB) member and Democrat Robert E. Primus Aug. 27 leaves the five-member agency short two members as it awaits a formal merger application from Union Pacific (UP) and Norfolk Southern (NS). By early morning Aug. 28, Primus’ name was removed from the STB website’s listing of members.
The three remaining members are Chairman Patrick J. Fuchs, Michelle A. Schultz and Karen J. Hedlund. Fuchs and Schultz are Republicans; Hedlund a Democrat.
Significantly, there is no statutory quorum requirement at the STB. It may function with even just a single member, as it did for a 54-week period between mid-May 2003 and late May 2004 when two vacancies caused Chairperson Roger Nober to become the lone STB member. There was a recurrence of a one-person STB for 16 days in January 2019 when Chairperson Ann D. Begeman awaited the arrival of reinforcements. At the time, the STB was a three-member agency. The 2015 Surface Transportation Board Reauthorization Act increased its size to five.
This is the first time in the 138-year history of the STB and its Interstate Commerce Commission predecessor that a member has been fired by a President. The STB’s statute provides for dismissal for cause—misconduct, poor performance, or other substantial breaches of job duties—but carries due process protection allowing the terminated official to hear the allegations and respond. No such allegations were made against Primus by POTUS 47.
Primus, age 55 and a former House of Representatives staff member, told the Wall Street Journal, which first reported the firing, that he intends to challenge his removal in federal court. He is not alone. Just days ago, POTUS 47 fired Federal Reserve Board member Lisa Cook, who is pursuing legal action. In her case, POTUS 47 alleged misconduct related to conduct outside her official duties.
Both the STB and Federal Reserve are independent (from the Executive Branch) regulatory agencies—STB members nominated by the POTUS for five-year terms; Federal Reserve Board members for 14 years, with Senate confirmation required for each of the agency’s members.
Earlier this year, POTUS 47 fired Gwyne A. Wilcox, a member of the independent (from Executive Branch) National Labor Relations Board (NLRB). She was a President Joe Biden nominee. A three-judge federal appellate court panel ruled the termination could stand pending finality of her legal challenge as to the constitutionality of the firing. A full-court panel reversed that decision, only to have the U.S. Supreme Court issue an emergency stay, keeping her sidelined while her case proceeds through lower courts.
In February, POTUS 47 fired Merit Systems Protection Board member Cathy Harris, also a Biden nominee. As with Wilcox, an appellate court reinstated her, and the Supreme Court blocked the reinstatement pending lower court determination as to the constitutionality of the firing.
In 2020 (Seila v. Consumer Financial Protection Bureau), the Supreme Court ruled the President has authority to dismiss an independent agency’s single director, but drew a distinction with multi-member boards such as the NLRB and STB. In 2021 (Collins v. Yellen) the Court held that restrictions on the President’s authority to remove the director of the Federal Housing Finance Agency violate the Constitution.
Previously controlling was a 1935 Supreme Court decision (Humphrey’s Executor), holding that the President may not dismiss independent agency members without showing cause and allowing for due process. Democratic President Franklin D. Roosevelt fired Republican Humphrey, who died while his case was under judicial review, because of policy differences and not misconduct. The Court held that members of independent agencies do not serve at the pleasure of the President as do members of Executive Branch agencies such as the Cabinet level Department of Transportation and its Federal Railroad Administration.
How long Primus’ challenge to his firing may take to move through the judicial system is unknown, and likely will be tied to other such challenges that will ultimately reach the Supreme Court.
Primus, who was nominated in 2020 by POTUS 47 during the President’s first term, was renominated by President Joe Biden to his second (and final by statute) term that was to expire Dec. 31, 2027. Since his arrival, Primus has been a frequent outspoken critic of railroad service, operations and hiring practices.
During his time as a Board member—and eight months as a President Joe Biden-named Board chairperson, following the retirement of Democrat Martin J. Oberman—Primus never advanced a regulatory reform initiative (a priority of POTUS 47). He preferred a soapbox from which to admonish railroads at the expense of missing numerous statutory deadlines.
In December, Primus challenged the “quality” of data provided the STB by the Association of American Railroads (AAR) as “substandard,” with AAR President Ian Jefferies responding by calling out Primus as choosing to “forego information gathering, fact checking, and basic courtesy and cooperation in favor of publicity.”
Previously, while chairperson, Primus, without consultation with other STB members, summoned rail officials to Washington for a public hearing at which he excoriated them over hiring practices and implementation of Precision Scheduled Railroading (a strategy to improve productivity and lower costs, and opposed by rail labor). Days earlier, Primus was hosted by the Transportation Division of the International Association of Sheet Metal, Air, Rail and Transportation Workers (SMART-TD), telling its leadership, “Thank you for letting me represent you.”
Primus was the lone “no” vote when the Board approved the merger of Canadian Pacific and Kansas City Southern to form CPKC. He cited market-power concentration and concern that mergers “degrade working conditions, depress wages and impair or eliminate organized labor.”
Upon election to his second White House term in January, POTUS 47 demoted Primus from the chairpersonship and elevated Fuchs. That likely would have occurred regardless of Primus’ record as chairperson, as STB chairpersons serve at the pleasure of the President and typically are changed out when Presidential administrations change. Being fired is another matter.
Notably, while Primus has had testy exchanges with railroad CEOs, his exchanges with UP CEO Jim Vena have been cordial, with Vena recently paying a personal visit to Primus.
Currently, the STB has a Republican vacancy awaiting POTUS 47 nomination. Whether courts allow a nominee to fill Primus’ now vacant Democratic seat, ahead of a judicial determination on his firing, is to be seen.
Railway Age Capitol Hill Contributing Editor Frank N. Wilner is author of “Railroads & Economic Regulation,” available from Simmons-Boardman Books, 800-228-9670.
