A judge ruled Thursday that the Office of Personnel Management — the central human resources office for the federal government — broke the law when it ordered other federal agencies to terminate thousands of “probationary” employees.
The ruling is a setback for the Trump administration’s ongoing effort to dramatically shrink the federal workforce. But it does not appear to immediately help any of the federal workers who have already lost their jobs.
That’s because U.S. District Judge William Alsup stopped short of ordering the agencies to reinstate the fired workers or to halt looming firings. Alsup said he doesn’t currently have the authority to do that.
The San Francisco-based judge, however, did order OPM to rescind any directives it has issued requiring the mass terminations. OPM also must inform several agencies that it has no power to dictate firings across the federal bureaucracy.
“OPM does not have any authority whatsoever under any statute in the history of the universe to hire and fire employees within another agency,” the judge said.
It’s not clear exactly how many probationary federal employees have been terminated by the Trump administration, but the number is reportedly more than 16,000 people.
Alsup, an appointee of President Bill Clinton, concluded that OPM advised the agencies to falsely claim the employees were fired for “performance” issues.
“That’s just not right in our country, is it, that we would run our agencies with lies like that and stain somebody’s record for the rest of their life?” Alsup said as he issued his ruling from the bench after a court hearing in a lawsuit brought by labor unions and organizations whose members are served by agencies hobbled by the mass terminations. “Who’s going to want to work in a government that would do that?”
At the heart of the case is a Feb. 14 memo that OPM sent to agencies asking them to “separate probationary employees you have not identified as mission-critical.” The memo was the culmination of other communications that suggested OPM was requiring other agencies to fire virtually all of their probationary employees, said lawyers for the groups that brought the lawsuit. Within days, many agencies acted on that apparent directive.
Alsup acknowledged that the heads of federal departments have significant authority to fire probationary workers within their own agencies. It’s just that OPM cannot order them to do so, the judge said.
The judge said at this point he could not bar agencies from dismissing probationary workers in the future. He said he is presently powerless, for example, to stop the mass termination of Pentagon probationary employees anticipated to take effect Friday, even though he urged the government to reconsider.
Alsup also said he could not order the government to reinstate previously fired workers because the only entity named as a defendant in the case is OPM. The groups that brought the lawsuit may have declined to name the individual agencies as defendants in order to avoid having their complaint funneled into special out-of-court channels used to process grievances about allegedly unlawful agency firings.
In the federal government, many newly hired workers are classified under “probationary status” for a period of time that varies by agency. Workers are also considered probationary immediately after getting a promotion. Probationary workers have fewer civil-service protections than other federal employees.
“Probationary employees are the lifeblood of our government,” Alsup said. “They come in at the low level and work their way up. That’s how we renew ourselves.”
The judge also said he would call acting OPM director Charles Ezell to testify under oath, at a hearing in San Francisco next month as the lawsuit proceeds.
The lawyer arguing for the Trump administration, Assistant U.S. Attorney Kelsey Helland, insisted that OPM never told the agencies to fire anyone but simply asked them to dismiss probationary employees deemed non-essential. He described it as a “request” that agencies were not obligated to follow.
“Asking is not ordering someone to do something,” said Helland, who sat alone at the defense table in the courtroom. “That is the house of cards upon which plaintiffs’ claim is built.”
But attorneys for the unions and organizations disputed OPM’s characterization of its message.
“It is simply not credible, your honor,” lawyer Danielle Leonard said. She cited sworn testimony to Congress from agency officials as well as comments made by agencies to their workers suggesting the termination decisions were being taken at OPM’s direction.
Alsup also said the abrupt wave of firings supported the inference that it was more of an order than a suggestion.
“How could so much of the workforce be amputated suddenly overnight?” the judge asked rhetorically. “It’s so irregular and so widespread and so aberrant from the history of our country. How could that all happen …? Each agency decided on its own to do something so aberrational? I don’t believe it. I believe they were ordered to do so. That’s the way the evidence points.”
