A California district judge granted partial relief to some of the federal government’s recently terminated probationary employees who argued that their termination from various agencies was unlawfully ordered by the Office of Personnel Management (OPM) under the false cause of performance.
Senior District Judge William Alsup provided partial relief on Feb. 27 to the non-union organizational employees, ordering their immediate reinstatement to agencies including the National Parks Service, every agency within the Department of Veterans Affairs, the Bureau of Land Management, the Small Business Bureau, and the Department of Defense.
He also ordered that OPM’s request be stopped and rescinded, because of the possibility of more federal employees being let go under the request.
All union-representative employees who were terminated, he ruled, had to go through administrative processes like the Merit Systems Protection Board (MSPB) and the National Labor Relations Authority (NLRA).
Eight attorneys were present in the San Fransisco courtroom representing 10 union and non-union organizations, which were, in turn, representing hundreds of probationary employees who said their termination at their respective agencies came down as a direct order from Charles Ezell, acting head of OPM rather than lawful independent action with cause from their agency head.
They also argued the terminations caused immediate harm not only to the plaintiffs but others as well, saying that the terminations directly resulted in the closures of national parks, removing protections of threatened species, and leaving veteran affairs centers without critical staff.
One attorney was present for the federal government, and he argued that OPM’s correspondence to agency heads by email on Jan. 20, by phone on Feb. 13, and again by email on Feb. 14 was an unenforceable request rather than a direct order that came with threatening consequences.
OPM, he argued, asked agencies to review and determine whether the probationary employees, who are not guaranteed employment, were performing well enough to remain employed, and that only those deemed highest-performing and mission-critical should be kept.
He also disputed the court’s jurisdiction over the case, arguing the former employees had to first go through administrative processes like the Merit Systems Protection Board, and that these processes would allow both union and non-union organizations to intervene on the individual plaintiffs’ behalf.
The court had copies of both emails, but it did not have any records of the Feb. 13 telephone call, and Alsup told defense counsel that the circumstantial evidence pointed to an order being given by OPM during that phone call.
The judge also said he believed the plaintiff’s complaint would likely succeed on merit because many agency heads said under oath that they were directed to fire their probationary employees. Government counsel reiterated that the agencies voluntarily terminated their own employees and used the Department of Justice’s decline to let any of its employees go as proof of the voluntary aspect of the termination guidance.
Alsup said in response that while the Department of Justice is full of lawyers who may already know better, there will be some agencies that follow the OPM’s guidelines but are not as strong or as well-versed, and that is what has happened.
He called for an evidentiary hearing to be held on March 13 at 8 a.m. PT to determine what happened on that phone call, making clear that Ezell will take the stand. Alsup asked that all evidence of the phone call be preserved and presented in court.
The plaintiffs notified the court that thousands of employees from the Department of Defense were to be let go on Feb. 28 based on the OPM’s email.
Alsup asked that the OPM tell the Department of Defense before employees were terminated that the guidance was invalid pending further hearing of the court.
Alsup made a point to commend the government’s attorney for doing “an honorable job” arguing a tough case, and he took a moment to share his appreciation for probationary employees, calling them “the lifeblood of our government.”
They come in at low levels and work their way up, he said. They’re the bright minds that come out of college and the way we renew ourselves.
They want to contribute to our country, he added, and when we terminate probationary employees, it hurts the mission of their agencies.
There are an estimated 200,000 probationary workers across federal agencies, according to The Associated Press.
