Washington — A federal judge in California ordered six federal agencies to reinstate probationary employees who were fired last month, finding that their terminations by the Office of Personnel Management were unlawful.
U.S. District Judge William Alsup in San Francisco handed down his order in a challenge brought by a group of unions against the Trump administration from the bench. He said that neither OPM nor its Acting Director Charles Ezell had the authority to direct the terminations across agencies.
The order extends relief to fired workers at the Departments of Veterans Affairs, Agriculture, Defense, Energy, Interior and Treasury.
“It is a sad, sad day when our government would fire some good employee and say it was based on performance when they know good and well that’s a lie,” Alsup said at the end of a hearing on the unions’ request for a preliminary injunction. “That should not have been done in our country. It was a sham in order to avoid statutory 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.
“It can be done if it’s in accordance with the law,” he said. “This case is not about that. What this case is about is really an attempt to do a reduction-in-force” through OPM. He said that having OPM, the federal government’s chief human resources agency, direct departments to fire probationary workers was an “easy way to get a reduction-in-force underway” and a “gimmick.”
The judge also criticized President Trump’s firing of former special counsel Hampton Dellinger and attempts to get rid of members of the Merit Systems Protection Board, which oversees the administrative appeals of federal workers challenging their firings. A federal judge in Washington ordered that Cathy Harris, a member of the MSPB removed by Mr. Trump, return to her role. The Trump administration has appealed that decision to the U.S. Court of Appeals for the District of Columbia Circuit.
Alsup said Mr. Trump’s removals of Harris and Dellinger were likely part of efforts to “decimate” the MSPB and ensure “these employees will have no recourse.”
Spokespeople for the Departments of Veterans Affairs and Interior declined to comment. White House press secretary Karoline Leavitt said in a statement that a “single judge is attempting to unconstitutionally seize the power of hiring and firing from the executive branch.”
“The president has the authority to exercise the power of the entire executive branch — singular district court judges cannot abuse the power of the entire judiciary to thwart the president’s agenda. If a federal district court judge would like executive powers, they can try and run for president themselves,” she said. “The Trump administration will immediately fight back against this absurd and unconstitutional order.”
A federal judge in Maryland also issued a similar ruling Thursday night in response to a lawsuit filed by 19 states and the District of Columbia challenging the mass firings of probationary government workers.
The hearing
The judge’s order came at the end of a roughly two-hour-long hearing on the unions’ request for a preliminary injunction. He repeatedly condemned the Trump administration’s efforts to keep key officials, namely Ezell, from testifying in the early stages of the litigation.
Ahead of the hearing, the Justice Department had withdrawn a declaration from Ezell. Lawyers for the unions said the move was part of an effort to keep him from having to answer their questions. In an order issued Monday, Alsup said that if Ezell failed to appear, the court “will have to decide the sanction.”
The judge told Kelsey Helland, a Justice Department lawyer, that allowing the acting OPM head to be questioned by lawyers representing the unions “will reveal the truth.”
Noting his decades on the bench, Alsup said, “I know how we get at the truth, and you’re not helping me.” He accused the government of frustrating his ability to find out whether OPM directed agencies to fire probationary workers, or whether the agency heads acted on their own.
But in the end, Alsup concluded that the human resources agency directed departments to get rid of the workers, with the exception of those considered “mission critical.” He rejected the Justice Department’s attempts to argue that press releases announcing the terminations show the agency heads themselves were the decisionmakers.
The Trump administration last month fired thousands of probationary employees, generally those who were in their roles for less than a year, as part of the president’s efforts to shrink the size of the federal government.
The notices informed the affected federal employees that they were being terminated for performance reasons. Shortly after, a group of unions representing government workers, the state of Washington and nonprofit organizations challenged the mass firings, arguing that OPM lacked the authority to order agencies to carry them out.
Danielle Leonard, a lawyer for the unions, said during Thursday’s hearing that the firings were not done at the discretion of each agency and argued OPM deliberately targeted probationary employees because they cannot challenge their terminations. She pointed to a Jan. 20 memo from Ezell noting that those on probationary periods “can be terminated during that period without triggering appeal rights to the Merit Systems Protection Board.”
“That’s how insidious this action was,” she said, adding that the plan from the beginning of Mr. Trump’s second term was to fire all probationary workers because they did not have a means of challenging their removals.
“It’s profoundly unlawful,” she said.
Leonard noted that probationary employees are not just those who are new to the workforce, but also includes those who recently received promotions.
“This action made Swiss cheese of the federal agencies at every level,” she said, adding that it targeted people with “decades” of federal service and experience. “They’re gone. Turn in your keys.”
But Helland, the government’s lawyer, argued that press releases from agencies show that their political leadership was taking credit for the terminations. He acknowledged that while OPM had a role in coordinating the efforts, it was the departments who made the final determinations of whom to fire.
Alsup’s latest order comes after he said last month said in separate decision providing temporary relief that the mass firings were likely unlawful and ordered OPM to inform certain agencies that it did not have the authority to order the terminations.
On the heels of that decision, Ezell and OPM issued revised guidance telling department leaders that they do not have to take any “specific performance-based actions” regarding probationary employees.
“Agencies have ultimate decision-making authority over, and responsibility for, such personnel actions,” the revised memo stated.
In addition to the mass firings, Mr. Trump’s efforts to drastically cut the size of the federal government included a so-called deferred resignation program, through which government workers OPM also gave federal workers the option to resign their positions but retain full pay and benefits until Sept. 30.
The White House said roughly 75,000 employees accepted the offer to leave their government jobs, far fewer than the 200,000 it expected to take the so-called buyout.
