Judge orders reinstatement of fired probationary federal workers

SAN FRANCISCO (CN) — A federal judge has extended a temporary restraining order blocking the Trump administration from firing thousands of federal employees, and ordered the administration to immediately reinstate probationary workers that were fired from the Department of Veterans Affairs, Pentagon and many other government agencies at the behest of the Office of Personnel Management.

At a hearing Thursday, Senior U.S. District Judge William Alsup, a Bill Clinton appointee, said that he believes that the government is obfuscating the truth because it has refused to make Charles Ezell, the acting director of the Office of Personnel Management, available to testify.

Two weeks ago, Alsup ruled the Office of Personnel Management had no authority to tell federal agencies to fire employees.

“This order further prohibits defendants from giving guidance as to whether any employee should be terminated. Any terminations of agency employees must be made by the agencies themselves,” Alsup said, noting that the order was from the bench and effective immediately.

At the hearing, Alsup said he was upset that Ezell refused to testify at Thursday’s hearing, which was originally scheduled to be an evidentiary hearing. Alsup wanted Ezell to testify because the plaintiffs claim Ezell, in a phone call last month with the heads of federal agencies, directed those agencies to terminate thousands of federal employees and falsely state that the terminations were for performance reasons.

“I said, ‘two hours for Mr. Ezell.’ A deposition at his convenience and you withdrew his declaration. Come on, that’s a sham. You’re not helping me get at the truth,” Alsup told Assistant U.S. Attorney Kelsey Helland. “You will not bring the people in here to be cross-examined. You’re afraid to do so because you know cross-examination would reveal the truth,”

Alsup continued: “The government, I believe, has tried to frustrate the judge’s ability to get at the truth of what happened here, and then set forth sham declaration after sham declaration, then withdrew it, then substituted it with another. That’s not the way it works in the U.S. District Court.”

Alsup noted Congress has the authority to use the Reduction in Force Act to reduce the size of federal agencies, but that the Trump administration in this case is trying to go around Congress to cut employees at federal agencies.

“This case is really an attempt to do a reduction in force but to force it through the OPM office, to have the OPM direct agencies to terminate probationary employees as an easy way to get a reduction in force,” Alsup said. “It is a sad, sad day when our government would fire some good employees and say it was based on performance when they know good and well that’s a lie. That should not be done in our country. It’s a sham.”

Danielle Leonard, counsel for the plaintiffs, said the probationary employees were fired specifically because they lack appeal rights, and that the terminations also extended to federal workers who had just accepted promotions.

“Fire them all because they can’t appeal. That’s what OPM has consistently said to the agencies in every single communication that’s before this court,” she said, calling OPM’s action “profoundly unlawful.”

Leonard estimated that more than 10,000 employees have been fired, and that the number might be higher. She said she does not believe most have been reinstated.

“We do not believe that they are going to return any of these employees to actual service, your honor. They certainly haven’t yet. That is the record before the court, they haven’t restored the services.”

Two weeks ago, Alsup ruled 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. But Leonard said Thursday that the union employees she represents may have standing because the Federal Labor Relations Authority has been gutted too, giving the union employees no recourse but to sue in federal court.

Alsup said that he would look at the union employees’ claims more closely, as he believes he might have been misled by government attorneys at the hearing two weeks ago. He said if what Leonard is saying is true, the union plaintiffs may have standing because there is no longer a channel to solve their problem.

He said the case is now open for discovery and both sides can take depositions and ask for documents, but he will not allow them to be overly broad in their discovery.

The plaintiffs sued over the firings in February. At the previous hearing, Helland told Alsup that OPM never ordered any government agency to fire anyone, but was merely giving guidance. 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, and issued an order blocking the firing of thousands of Pentagon workers after that hearing.