Democrat Files Suit Challenging Trump's Dismissal of Him From Board That Will Review Historic Rail Merger

“Members today, and in the future, must have the autonomy to review matters that come before the Board without political or partisan pressure.” Robert Primus said on LinkedIn Wednesday, the day he sued President Donald Trump in federal court.

A man President Donald Trump booted off a board that will decide whether to approve the $85 billion Union Pacific-Norfolk Southern rail merger, has sued the president, claiming his removal was without cause and therefore illegal.
 
Robert Primus, who was a Democratic member of the U.S. Surface Transportation Board from 2020 until his ouster in August, filed the 12-page federal suit Wednesday in the District of Columbia.
 
The suit alleges Primus' firing violated the 1887 Interstate Commerce Act—which created the STB's predecessor, the Interstate Commerce Commission—as well as subsequent laws establishing the STB. In those statutes, Congress protected commissioners from removal except in cases of “inefficiency, neglect of duty, or malfeasance in office,” the suit says.
 
The White House dismissed Primus Aug. 27 with a one-sentence email that gave no reason for his removal.
 
In a statement posted on LinkedIn Wednesday, Primus said his removal threatens STB's independence and impartiality.
 
“Members today, and in the future, must have the autonomy to review matters that come before the Board without political or partisan pressure,” he said. “Railroads, shippers and the labor force that comprise our rail network depend on this impartiality, and so does the nation’s economy and the American consumer that powers it.”
 
Primus’ complaint makes no mention of the 1935 Supreme Court case Humphrey’s Executor v. United States, which protected independent agencies from direct presidential control. The high court in September agreed to revisit the ruling as part of a challenge to Trump’s firing of Democratic Federal Trade Commission member Rebecca Slaughter.
 
Trump has fired Democratic commissioners and board members from numerous independent agencies, including the National Labor Relations Board, the Consumer Product Safety Commission, the Equal Employment Opportunity Commission and the Federal Reserve. The fired officials are challenging their dismissals in court, arguing that Trump exceeded his authority, as beyond the president's authority.
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"The Supreme Court seems poised to overturn Humphrey’s, which would potentially impact [Primus’] claim as well, unless Primus can argue that the Interstate Commerce Commission has a historically grounded exception similar to the exception the court has suggested might be available for Federal Reserve Board members,” George Washington University constitutional law professor Paul Schiff Berman said in a text.
 
Primus, who is being represented by Democracy Forward and Justice Legal Strategies, said in his complaint that Congress emphasized the independence of the STB when it established the panel in 1995.
 
“Congress has recognized the need for an independent, ideologically balanced entity to oversee the economic regulation of railroads and other interstate land and water transportation,” it states.
 
Primus’ firing came as the STB prepares to review Omaha, Nebraska-based Union Pacific's proposed $85 billion purchase of Atlanta-based Norfolk Southern. The deal, unveiled in July, would create the nation’s first intercontinental railroad. The STB, which has sole jurisdiction to approve rail mergers, has never reviewed a deal of that size.
 
Primus’ removal gives Republicans a 2-1 majority on the board. Democrat Karen Hedlund’s term expires at the end of this year.
 
For the merger to be approved, the companies must convince the STB that the combination will enhance competition—no small task considering the deal would reduce the number of major U.S. rail freight carriers from four to three. The other major carriers are Fort Worth, Texas-based BNSF Railway and Jacksonville, Florida-based CSX.
 
Primus has not commented publicly on the proposed Union Pacific-Norfolk Southern merger. But two years ago, he was the sole STB board member to vote against Canadian Pacific Railway Ltd.'s $31 billion purchase of Kansas City Southern Railway Co. The companies closed their deal in April 2023.
 
Trump has voiced support for the deal