Judge blocks Trump administration’s mass firing of federal workers

SAN FRANCISCO (CN) — A federal judge issued a temporary restraining order in a lawsuit pitting unions representing thousands of federal workers against the Office of Personnel Management, which the plaintiffs say recently ordered federal agencies to terminate all probationary employees on the pretext of poor job performance.

In their complaint, the plaintiffs claim that numerous government agencies informed workers that OPM had ordered the terminations. Agencies were to use a template email informing workers their firing was for performance reasons, the plaintiffs say.

Senior U.S. District Judge William Alsup, a Bill Clinton appointee, said the firings were likely illegal and that OPM has no authority to order agencies to hire or fire employees. He found OPM can only give guidance and that the government’s argument that it was merely giving guidance could easily be seen as an order by the agencies.

Alsup ordered OPM to rescind its prior directives to cut probationary employees at many agencies, including the Department of Defense, National Science Foundation, and many others. He’ll issue an order soon to block Friday’s scheduled firings of several thousand workers at the Department of Defense.

“Congress has given the authority to hire and fire to the agencies themselves. The Department of Defense, for example, has statutory authority to hire and fire,” Alsup said from the bench Thursday in San Francisco federal court. “The Office of Personnel Management does not have any authority whatsoever under any statute in the history of the universe to hire and fire employees at another agency. They can hire and fire their own employees.”

However, Alsup noted that the union plaintiffs likely do not have standing and will need to pursue their claims before an administrative agency, such as the Federal Labor Relations Authority, before they can bring their claims in court.

The non-union plaintiffs, however, do have standing. Alsup said that OPM must rescind and reverse the firings of employees at the U.S. Bureau of Land Management and Department of Defense and the Veterans Administration.

The government argued it never ordered agencies to fire employees, only requested it. President Donald Trump’s administration has vowed to vastly shrink the federal workforce, which Trump has called bloated and wasteful. There are around 200,000 federal workers in the United States.

The union plaintiffs were also joined by five nonprofit organizations that represent veterans, small businesses, parks and the environment. They sought an injunction to stop the firings and to rescind those that have already happened.

Alsup also said that he believed the agencies were likely to succeed on the merits of their suit because so many agencies, including the Department of Defense, Internal Revenue Service and Department of Veterans Affairs all said they interpreted OPM’s communications to be an order, not guidance.

Alsup said the evidence was circumstantial, but pointed in favor of the plaintiffs.

“How could so much of the workforce be amputated suddenly overnight? It’s so irregular and so widespread and so aberrant from the history of our country. How could that all happen with each agency deciding on its own to do something so aberrational? I don’t believe it. I believe they were directed or ordered to do so by open telephone call. That’s the way the evidence points,” Alsup said.

Alsup vehemently defended probationary employees, calling them the “lifeblood of our government.”

“They come in at the low level, and they work their way up, and that’s how we renew ourselves and reinvent ourselves,” Alsup said, noting that terminating them presents undeniable harm to the organizational plaintiffs, and that people were unlikely to want to work for the government if it arbitrarily fires people.

For relief, Alsup held that the January orders from OPM to begin terminating federal employees were invalid pending further order of the court. He said that he would like to have an evidentiary hearing before deciding how to proceed further, and promised an order with a written copy of his ruling.

Before Alsup ruled, the plaintiffs’ attorney Danielle Leonard said that OPM had no authority to terminate employees and that OPM’s acting director Charles Ezell in a phone call on Feb. 14, ordered government agencies to terminate probationary employees that were not identified as “mission critical” by no later than the end of the day Feb. 17.

Alsup said that Ezell and any others on that phone call would be expected to testify at any upcoming evidentiary hearing.

Kelsey Helland with the U.S. Attorney’s office argued that OPM never ordered any agency to fire employees, but was merely offering guidance.

“If OPM merely asked agencies to take their own action, then I think all of plaintiffs’ claims fail because their theory depends on you construing this request as an order,” Helland said.

Alsup pushed back, noting that the Department of Defense, Internal Revenue Service and other federal agencies said they were “directed” to fire probationary employees from the OPM.

“Doesn’t that sound like to you that someone ordered it to happen? As opposed to ‘oh, we just got guidance?’” Alsup asked.

Helland replied that OPM certainly had a role, but it was again a request, not an order. He noted that some agencies did not terminate any probationary employees, such as the Department of Justice, and there were no threats or consequences for agencies that did not comply with OPM’s request.

Helland also argued that federal court was not the correct jurisdiction to decide the dispute.

“There is a long and nearly unbroken line of cases holding that when federal employees or organizations representing federal employees are challenging these kinds of personnel actions, those claims need to go either to the Merit Systems Protection Board, or the Federal Labor Relations Authority.

Stacey Leyton, counsel for the non-union parties, said the orders have sown chaos.

“The declarations show the termination of employees who answer phones and schedule appointments at the VA hospitals, who staff the crisis line that is available for veterans who are facing mental health crises, who have suicidal ideation and need to be connected with services."

Leyton also said the firings are affecting numerous sectors of America.

“There are all sorts of impacts on public lands and on this country’s national resources, and these organizations have demonstrated harm to critical safety projects. Civilian firefighters on naval bases have been terminated. Research on firefighter safety has been lost. Federal Aviation Administration employees who are working on safety regulations and who are processing candidates for air traffic control programs have been terminated,” Leyton said.

Before leaving the bench, Alsup requested Helland to let agencies know about his ruling that OPM does not have the authority to order federal firings.

“I would hate for probationary employees to lose their jobs and for the government to be compromised," he said.