Washington – A federal judge in California has ordered six federal agencies, including the Office of Personnel Management, to reinstate probationary workers who were terminated last month. The judge found that the terminations were illegal.
William Alsup, U.S. district judge in San Francisco, issued his ruling in response to a lawsuit brought from the bench by a union group against the Trump Administration. He stated that neither OPM or its Acting Director Charles Ezell have the authority to order terminations across agencies.
The order provides relief for fired employees at the Departments of Veterans Affairs, Agriculture, Defense, Energy, Interior and Treasury.
Alsup stated at the conclusion of an hearing regarding the unions’ application for a preliminary order. “This should never have happened in our country. It was a sham to avoid legal requirements.”
The judge, who was appointed by President Bill Clinton, noted that federal law allows for agencies to engage in a “reduction-in-force,” the government’s name for mass layoffs, but doing so comes with several requirements.
He said, “It’s possible if you follow the law.” This case does not concern that. This case is really about an attempt to reduce the number of employees through OPM. He claimed that OPM’s directive to departments to terminate probationary employees was a “gimmick” and an “easy way” to start a reduction in force.
The judge also criticised President Trump’s firing former special counsel Hampton Dellinger, and his attempts to remove members of the Merit Systems Protection Board (MSPB), which oversees administrative appeals by federal workers challenging their dismissal. A federal judge ordered in Washington that Cathy Harris, a former member of the MSPB who was removed by President Trump, be reinstated to her position. The Trump administration appealed this decision to the U.S. Court of Appeals District of Columbia Circuit.
Alsup stated that Mr. Trump’s removal of Harris and Dellinger was likely part of an effort to “decimate the MSPB” and ensure “these workers will have no recourse.”
The Departments of Veterans Affairs and Interior did not comment.
Hearing
The order was issued by the judge at the conclusion of a two hour hearing regarding the unions’ application for a preliminary restraining order. He condemned repeatedly the Trump administration’s attempts to prevent key officials from testifying, including Ezell in the early stages.
The Justice Department withdrew a statement from Ezell before the hearing. Lawyers representing the unions claimed that the Justice Department had done this to avoid Ezell answering their questions. Alsup stated in an Order published Monday that, if Ezell fails to appear, “the court will have to determine the sanction.”
The judge told Kelsey Helland of the Justice Department that allowing lawyers from the unions to question the acting OPM director “will reveal truth”.
Alsup, citing his years of experience on the bench said: “I know the way to get the truth and you are not helping me.” Alsup accused the government for preventing him from determining whether OPM had directed agencies to terminate probationary workers or if agency heads fired them on their own.
Alsup’s conclusion was that the agency in charge of human resources had directed departments to fire workers except for those deemed “mission critical.” He rejected the Justice Department’s argument that press releases about the terminations showed the agency heads were the decision makers.
Last month, the Trump administration fired thousands of probationary workers, most of whom had been in their positions for less than one year. This was part of President Trump’s effort to shrink the federal government.
The notices informed affected federal employees they were being terminated due to performance reasons. A group of unions representing federal employees, Washington state and nonprofit organizations challenged mass firings shortly after. They argued that OPM did not have the authority to order agencies carry them out.
Danielle Leonard is a lawyer representing the unions. She said at Thursday’s hearing the firings weren’t done at the agency discretion. OPM, Leonard argued, deliberately targeted probationary workers because they can’t challenge their terminations. She cited a memo from Ezell dated Jan. Ezell wrote in a memo dated January 20 that probationary employees “can be terminated without triggering the right to appeal before the Merit Systems Protection Board.”
She said that this was a very insidious action, and added that it was the plan of the second Trump term to fire all probationary employees because they had no way of contesting their dismissal.
She said, “It is a grave violation of the law.”
Leonard pointed out that probationary employees include not only those who have recently been promoted, but also those who are brand new to the workplace.
She said that the action targeted people who had “decades of experience” in federal service. “They’re gone. “Turn in your keys.”
Helland, government’s attorney, said that press releases issued by agencies showed that the political leadership of the agency was taking credit. He admitted that OPM played a key role in coordination, but it was departments who ultimately decided on firings.
Alsup’s new order follows his statement last month that mass terminations were probably illegal. He also ordered OPM inform certain agencies about its lack of authority to order terminations.
After that decision was made, Ezell and OPM released revised guidance informing department leaders they did not need to take “specific performance-based action” with respect to probationary employees.
The revised memo states that “Agencies are responsible for and have the ultimate decision-making power over such personnel actions.”
The deferred resignation program was part of Mr. Trump’s effort to reduce the size and scope of the federal government. Through this program, federal employees were given the option to resign but keep their full salary and benefits up until September 30.
The White House reported that approximately 75,000 government employees had accepted the offer of leaving their jobs. This is far less than the 200 it expected would take up the so-called “buyout”.
