Two federal judges ordered the Trump administration on March 13 to reinstate thousands of probationary workers it terminated across dozens of federal departments and agencies.
U.S. District Judge William Alsup ruled during a hearing in a federal courtroom in San Francisco that the administration must bring the workers back, because the Office of Personnel Management (OPM) does not have the power to order firings, and that there is evidence that the office improperly directed the termination of newer employees at the agencies.
Under the order, six agencies—the Pentagon, the U.S. Department of Veterans Affairs, the U.S. Department of Agriculture, the U.S. Department of Energy, the U.S. Department of Interior, and the U.S. Treasury Department—must reinstate the workers they fired on or around Feb. 14 based on guidance from OPM and its acting director.
The total number of workers who are being reinstated is not clear but is at least 9,100, based on public statements from three of the agencies.
U.S. District Judge James Bredar, who is based in Maryland, said in a ruling that agencies must give advance notice when conducting broad terminations.
The orders apply to the Departments of Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Interior, Labor, Transportation, Treasury, and Veterans Affairs.
Bredar’s order also covers the Consumer Financial Protection Bureau, Environmental Protection Agency, Federal Deposit Insurance Corporation, General Services Administration, Small Business Administration, and the U.S. Agency for International Development.
Alsup ordered six of the agencies to reinstate the workers they fired on or around Feb. 14 based on guidance from OPM and its acting director.
The total number of workers who are being reinstated is unclear but is at least 11,000, based on public statements from five of the agencies.
OPM Memos
There are an estimated 200,000 probationary workers across federal agencies. They include entry-level employees and workers who recently received a promotion.OPM has been in contact with agencies regarding the termination of probationary employees.
On Jan. 20, after President Donald Trump was sworn in, acting OPM Director Charles Ezell said that newer employees generally can be fired without triggering their rights to appeal.
OPM on Feb. 14 told agencies to “separate probationary employees“ they have not identified as ”mission-critical.”
OPM two weeks later said that when agencies fail to take advantage of probationary periods, “poor performers tend to remain in the federal service far too long because supervisors are less likely to remove an employee with full appeal rights.”
Unions sued the office, alleging that it lacked the authority to terminate workers.
Government lawyers have said that OPM was only issuing guidance, not orders. OPM in revised guidance issued on March 4 told agencies that “agencies have ultimate decision-making authority over, and responsibility for ... personnel actions.”
Unions also said that the terminations violated federal law, which has requirements for how agencies complete reductions-in-force, or mass layoffs. They said that agency officials told fired workers that OPM had ordered the firings, and many received a template that said they were being fired over performance.
Government lawyers said the firings were lawful because individual agencies reviewed and determined whether employees on probation were fit for continued employment.
Alsup said the evidence in the case showed that some employees were fired over alleged poor performance despite receiving positive evaluations just months prior.
“It is sad, a 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,” he said. “That should not have been done in our country.”
Alsup in February blocked OPM from ordering agencies to fire probationary employees but didn’t require that the fired workers get their jobs back.
