Democrat Robert E. Primus, fired Aug. 27 from the Surface Transportation Board (STB) by Republican POTUS 47, alleges in an amended legal challenge filed in federal district court Dec. 4 that the primary reason for his termination is racial discrimination—not politics nor concerns how he might vote on the soon-to-be filed merger application by railroads Union Pacific (UP) and Norfolk Southern (NS). Primus seeks reinstatement.
When terminated in August, Primus was in the midst of a second Senate-confirmed five-year term expiring Dec. 31, 2027.
Primus’ first term began in January 2021 following nomination by POTUS 45. He was filling a seat left vacant by Democrat Deb Miller, whose term expired in 2018. Democratic President Joe Biden designated Primus as chairperson in 2024, following the retirement of Democratic Chairperson Martin J. Oberman. After taking office in January 2025, POTUS 47 designated sitting Republican board member Patrick J. Fuchs as chairperson, with Primus returning to member status—a typical event when Presidential Administrations change.
Of 117 White House nominated and Senate confirmed members of the 138-year-old STB and its Interstate Commerce Commission (ICC) predecessor, Primus is only the fifth Black, and was the first Black chairperson. Prior to Primus’ Senate confirmation, it was 2001 when the STB previously had a Black member—William Clyburn Jr., who departed upon term expiration.
Primus first challenged his firing in September in federal district court as unlawful, alleging members of independent regulatory agencies may be removed only for cause (inefficiency, neglect of duty or malfeasance in office), and that POTUS 47 failed to provide a valid reason. Primus’ “effective immediately” termination was made in a terse 28-word email from the White House Personnel Office.
In his Dec. 4 amended complaint (download below), Primus says his firing “fits within a pattern of the Trump Administration disproportionately removing Black government officials, and particularly Presidentially appointed and Senate-confirmed Board members of independent multimember agencies.” He says “75% of Black federal officials” on multi-member agencies have been removed from office. In contrast, Primus says “only approximately 27% of white federal officials” on multimember agencies have been removed.
The amended lawsuit asserts that the Constitution’s Fifth Amendment Due Process Clause “guarantees the federal government will provide all people with equal protection under the law. Included within the ambit of these rights is a protection [because of race] against discrimination in employment decisions.”
Additionally, the amended complaint rejects that Primus’ political affiliation as a Democrat could be “the sole reason” for his termination, as even had Primus remained a Board member, a third Republican vacancy exists to assure a 3-2 Republican majority. That allegation is questionable, as if Primus had remained, and the third Republican seat not filled, the Board would have two Republicans and two Democrats. The amended complaint further says that while Democrat Primus, a Black, was removed, Democrat Karen J. Hedlund, White, retained her seat.
Hedlund is serving her first term, which expires at the end of December and is eligible for a second five-year term, although no renomination has been made. Primus, as mentioned, was in his second term, with a Dec. 31, 2027, expiration. By statute, STB members may remain in holdover statute up to 12 months beyond term expiration or until a successor has been Senate confirmed.
Primus is represented by Democracy First Foundation (a national legal organization that “advances democracy and social progress through litigation, policy, public education, and regulatory engagement”) and Justice Legal Strategies (a civil rights law firm). The lawsuit is against POTUS 47 and Fuchs, in his official position as STB chairperson.
Primus is not the only Black fired by POTUS 47 from an independent federal regulatory agency. Other Blacks fired have been Democrat Rebecca Slaughter from the Federal Trade Commission; Democrat Gwynee Wilcox from the National Labor Relations Board; and Democrat Alvin Brown from the National Transportation Safety Board. Each has filed a lawsuit alleging unlawful termination. Brown amended his Dec. 4 to make the same racial discrimination allegation as Primus.
Because of first-impression Constitutional questions, finality for each of the original lawsuits must await Supreme Court review. The Justice Department, which supports the firings, argued that even if the POTUS 47 terminations are unlawful, courts have no authority to order reinstatement.
Democrat Deidre Hamilton, fired by POTUS 47 from the National Mediation Board, has so far not filed a lawsuit. She does not identify as Black.
Primus is not without a contentious history on an agency whose reputation depends on perceptions of decisional independence, free from influence of special interests or politics. Throughout his time at the STB, Primus displayed an 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. In a personal appearance at a rail labor union event, Primus said, “Thank you for letting me represent you”—a suggestion perceived by many as in conflict with impartial execution of STB responsibilities.
There have been unvalidated allegations that Primus was predetermined to vote against a UP-NS merger based on his opposition to a 2022 STB-approved merger of railroads Canadian Pacific with Kansas City Southern to form CPKC. Those allegations gained traction following a recent meeting between UP CEO Jim Vena and POTUS 47 at which Vena made a cash contribution on behalf of UP to a POTUS 47 planned White House ballroom, and the President responded how the proposed merger “sounds good to me.” There is no evidence that Primus’ firing—which occurred months before the Vena-POTUS 47 meeting—was urged by Vena or UP lobbyists.
The five-member STB is currently at a strength of three—Republicans Fuchs and Michelle A. Schutz, and Democrat Hedlund. Schultz, whose first term expires in late 2026, was renominated to a second five year term by POTUS 47 and awaits Senate confirmation. POTUS 47 nomination of a third Republican, Richard Kloster, is currently before the Senate Commerce Committee, which will meet in Executive Session Dec. 8 to vote on whether to recommend him for Senate floor confirmation. The STB’s second Democratic seat, held by Primus until his termination, remains open.
It was not until 1979 that the ICC and its STB successor (the ICC created in 1887) had its first Black member, Marcus Alexis (1979-1981), who was nominated by President Jimmy Carter. Other Blacks, in addition to Primus, were Reginald E. Gilliam Jr. (1980-1983), Jacob J. Simmons (1982-1983 and 1984-1986), and Clyburn (1998-2001).
The first female ICC/STB member was Virginia Mae Brown (1964-1979), nominated by President Lyndon Johnson. Since, there have been nine other female members: Betty Jo Christian (1976-1979), Heather J. Gradison (1982-1990), Karen B. Phillips (1988-1994), Gail C. McDonald (1990-1995), Linda J. Morgan (1994-2003), Ann D. Begeman (2011-2021), Debra L. Miller (2014-2018), Michelle A. Schultz (2021-____) and Karen J. Hedlund (2021-____).
The ICC/STB has had only one Latino member, Democrat Rodolfo Montejano, a Mexican American attorney son of a migrant farm worker, who failed to gain Senate confirmation but received a recess appointment from President Richard Nixon in 1972. Four months later, Montejano voluntarily resigned to make way for another Nixon nominee, Democrat A. Daniel O’Neal.
Railway Age Capitol Hill Contributing Editor Frank N. Wilner, a former White House appointed STB chief of staff, is author of “Railroads & Economic Regulation,” which includes a history of the ICC and STB, including significant decisions and biographies of the agency’s 117 members. It is available Simmons-Boardman Books, 800-228-9670.
