Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—E.D. Va.: FEMA CFO, removed by Trump, entitled to due process protections, name-clearing hearing, (Jul 23, 2026)

By Kathleen Kapusta, J.D.

On the same day she was removed, the CFO was accused of being a “deep-state activist” and “funneling $58M to illegal migrant hotels in Manhattan.”

The former chief financial officer of FEMA, who was notified in February 2025 that she was being removed from her position, and from federal service, at the direction of President Trump pursuant to Article II of the U.S. Constitution, and who was simultaneously accused by government officials of “circumventing leadership to unilaterally make egregious payments for luxury NYC hotels for migrants,” was deprived of her property interest in continued federal employment without due process of law and is entitled to a name-clearing hearing, a federal court in Virginia declared, granting her motion for partial summary judgment. Although it recognized that “with the overruling of Humphrey’s Executor, the President’s Article II power to remove the principal officer leaders of independent agencies has reached a high-water mark,” that case, it explained, had nothing to do with inferior officers, and the law “does not permit Defendants to fire Plaintiff, nor to publicly denigrate her in conjunction with that action, without due process” (Comans v. Executive Office of the President, No. 1:25-cv-MSN-WEF (E.D. Va. July 22, 2026)).

The employee began her federal employment in 2004 as a Presidential Management Fellow at the FDA and then at DHS, where she rose through the civil service ranks. She eventually joined the Senior Executive Service (SES) in 2016 as the Deputy CFO for FEMA, became acting CFO in 2017, and was selected by the FEMA Administrator as the permanent CFO later that year.

Duties as CFO. In that role, the court observed, she led 450 personnel and administered FEMA’s $45 billion budget. She served chiefly as an advisor to higher level FEMA and DHS officials, however. She did not make grants or determine the criteria for them and generally had no authority over how FEMA spent funds or over its budget requests. Further, higher agency officials could reject her advice and could revise or reject any decision she made. Nor could she initiate or conduct any legal proceedings, make rules binding on the public, or bind the public or the agency generally.

Notice of removal. Though she was lauded as an “effective, well-respected leader and trusted advisor to the FEMA Administrator, Deputy Administrator, and [DHS] leaders,” in February 2055, she received a notice of removal from her position. The notice stated that the “action is being taken pursuant to Article II of the United States Constitution, at the direction of the President. Article II, § 1 states that the executive Power ‘shall be vested in a President of the United States of America,’ and this termination is an exercise of that vested power.”

“Deep state.” That same day, DHS, in a press release, stated that the employee had been fired “for circumventing leadership to unilaterally make egregious payments for luxury NYC hotels for migrants” and that “[u]nder President Trump and Secretary Noem’s leadership, DHS will not sit idly and allow deep state activists to undermine the will and safety of the American people.” Elon Musk also retweeted a photo of the employee with the statement “FEMA CFO Mary Comans was just fired for funneling $58M to illegal migrant hotels in Manhattan,” which he called a “criminal action,” and Trump posted on Truth Social that “FEMA spent millions of dollars in Democrat areas, disobeying orders …” The employee was never afforded an opportunity to be heard regarding these statements about her and the circumstances surrounding her termination or afforded any name-clearing hearing.

The employee subsequently sued the Executive Office of the President, DHS, and the United States claiming they deprived her of her property interest in her continued federal employment and her reputational liberty interests without any due process. She moved for summary judgment on her property and liberty interest claims and the government, on a cross-motion for summary judgment, argued that her termination was correct and the Civil Service Reform Act (CSRA) is unconstitutional as applied to her because Article II power trumps any congressionally imposed restrictions on her removal.

Property interest in continued employment. Stunned by the government’s assertion the CSRA is unconstitutional as applied to the employee because the President’s powers under the Vesting and Take Care Clauses require that she, as an apparent inferior officer, be removable at-will, the court explained that “the constitutionality of the CSRA’s SES protections has never been in doubt at any time in the Act’s forty-eight year history,” and even assuming she was an inferior officer, “it is also a proposition that is not supported by the law as it currently exists.”

Perkins. The U.S. Supreme Court, in its 1886 decision in U.S. v Perkins, recognized that “when congress, by law, vests the appointment of inferior officials in the heads of departments, it may limit and restrict the power of removal as it deems best for the public interest.” Since then, said the court here, the Supreme Court has “repeatedly reaffirmed the principle that the President does not have plenary power to remove all inferior officers and that Congress may validly regulate the method by which such officers are removed.”

Framing the “ultimate question” on the permissibility of an inferior officer’s removal restriction as whether the “removal restriction is of such a nature that it impedes the President’s ability to perform his constitutional duty,” the court found the answer here was a clear “no.” The court noted that the CSRA did not vest the employee with absolute for-cause protection. Rather, it observed, they can be reassigned or transferred to other positions in the SES without any reason and with minimal notice.

SES members, the court explained, can generally be removed from the civil service altogether only for “misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function” and with full notice, pre-deprivation hearing, and appeal rights, and the Executive has ample latitude to manage SES members even in the absence of good cause. “These features,” the court explained, “are not accidental but are rather a reflection of informed choices by Congress to vest the SES with protections commensurate with both the more prominent role that such employees play in the civil service and the President’s attendant need for control.”

“Significant stock,” said the court, “must be placed in the limited nature of the CSRA’s SES protections,” particularly as applied to the employee here who “was positioned in FEMA within the Department of Homeland Security—not an independent agency—and subject to the supervision of principal officers removable at will.”

Elite of the elite. As to the government’s assertion the employee was among the “elite of the elite,” the court pointed out that while she was a manager and advisor, she was not a policymaker, rule maker, regulator, investigator, prosecutor, litigator, or adjudicator, and she did not wield any core executive power. Rather, the reach of her “jurisdiction” was confined to the budgetary and financial operations of FEMA and she had only the administrative authority necessary to operate her office. Moreover, said the court, “all of her advice and decision making was ‘trained inward’ to the agency and entirely displaceable by freely removable principal officer supervisors.”

For all of these reasons, said the court, it could not find that CSRA’s SES protections, as applied to the employee, “unduly trammels on executive authority.” Accordingly, the court found the employee was entitled to summary judgment on this claim.

Liberty interest. Turning to the employee’s assertion the government deprived her of her liberty interests by making stigmatizing and derogatory public statements in conjunction with her termination, the court found this was a straightforward matter. Noting that it had already found she had a property interest in her continued employment, the court pointed out that when she was terminated, the government “publicized highly-damaging statements that implied serious defects on her part, including that she had refused binding orders, violated the civil and criminal laws, wasted government funds, undermined the ‘will and safety of the American people’ as a ‘deep state activist,’ ‘laundered the forbidden funding,’ and engaged in a cover-up by ‘knowingly [hiding] this information from legal counsel to manipulate the funding process.’”

Because she was never provided with an opportunity to refute these accusations, such a deprivation of liberty, said the court, amounts to a denial of adequate procedure for which a name-clearing hearing is the appropriate remedy.

CDPS. The government, however, argued that she was not entitled to any relief because none of the statements it made about her “bear on the validity of the exercise of Article II removal authority,” rendering a name-clearing hearing a “meaningless exercise.” In support, it cited Connecticut Department of Public Safety v. Doe (CDPS), a 2003 U.S. Supreme Court decision in which the Court considered whether a convicted sex offender could assert a liberty interest claim based on the lack of a pre-deprivation hearing to determine whether he was likely to be “currently dangerous” before his personal information was publicized, by operation of a Connecticut statute, in a state sex offender registry. In that case, the Court found that “even assuming, arguendo, that respondent has been deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact that is not material” under the statutory scheme.

Finding CDPS was not relevant here, the court noted that “it goes without saying that there could not be a greater difference between the context of CDPS, in which the Court prefaced its analysis by recognizing that ‘[s]ex offenders are a serious threat in this Nation,’ and the case at hand.” And even assuming CDPS would mean that a valid Article II termination could preclude a corresponding liberty interest claim, the court found it difficult to see why a termination that is not permissible on such grounds should foreclose a liberty interest claim.

Perhaps most crucially, said the court, while the Supreme Court in CDPS emphasized that the website operated by the state pursuant to state law provided conspicuous notice that inclusion of a person had nothing to do with their dangerousness or lack thereof, the information was not to be misused on pain of criminal prosecution, and the purpose of the site was for general information accessibility purposes and not to warn about any specific person, the government’s statements here expressly stated that the employee was fired because of improprieties—with no mention of Article II. “Simply put, the public statements had nothing to do with Defendants’ invocation of Article II, and Article II has no bearing on the validity of Plaintiff’s liberty interest claim or its remedy.” Accordingly, the court found the employee was also entitled to summary judgment on this claim and a name-clearing hearing.

The case is No. 1:25-cv-MSN-WEF.

Judge: Nachmanoff, M.

Attorneys: Abbe David Lowell (Lowell & Associates) for Mary Comans. Matthew J. Mezger, U.S. Attorney's Office, for Executive Office of the President, Department of Homeland Security, and the United States.

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