Judge orders rescission of OPM memos directing agencies to fire probationary employees

A federal judge on Thursday ordered the Office of Personnel Management (OPM) to rescind memos that directed agencies across the federal government to fire probationary employees, finding they were likely unlawful.

U.S. District Judge William Alsup said OPM must notify agencies it did not have the authority to call for the firing of those employees but stopped short of directing agencies themselves not to continue with terminations.

The order only applies to agencies with ties to the plaintiffs in the case, but the judge urged the government to go a step further and notify other agencies as well.

"(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 within another agency,” Alsup said.

“The agencies could thumb their nose at OPM if they wanted to,” he added.

Alsup said he would release an opinion with further details in “due course.” An evidentiary hearing is expected next month, where the judge said he wanted OPM acting director Charles Ezell to testify.

A coalition of government employee unions sued over OPM’s directive to agency leaders to fire employees still in their probationary period, which may last anywhere from one to two years after being hired. Those employees still have workplace protections, but it is easier to remove them.

The directive, which was expected to impact up to 200,000 employees, reversed another memo days earlier telling agencies to only remove probationary employees if they were poor performers.

It led agencies to quickly begin slashing their workforce. Roughly 400 employees have been fired by both the Department of Homeland Security and Environmental Protection Agency, while the Interior Department fired about 2,300 people. Cuts still loom at other agencies, including the Defense Department.

Danielle Leonard, a lawyer representing the challengers, said OPM required agencies to use template notices that falsely told probationary employees they were being terminated for performance. She called the action a “wholesale fraud on the federal workforce.”

“They knew that was not true,” Leonard said. “That is the factual issue at the heart of the case.”

The plaintiffs also argued that the mass firing should have been preceded by individualized assessments in line with Reduction in Force (RIF) procedures.

Assistant U.S. Attorney Kelsey Helland said that the plaintiffs were conflating a “request” by OPM with an “order,” suggesting that the misinterpretation makes a “world of difference” in the case.

He said that the White House budget office asked agencies to review probationers based on their performances but could ultimately make their own decisions about which employees to keep or eliminate.

“That is the house of cards upon which plaintiffs’ claim is built,” Helland said.

He pointed to the Justice Department and Equal Employment Opportunity Commission as examples of agencies which have disregarded OPM’s request, noting that there were no “punishments or consequences” for agencies that declined to follow through.

“Not yet,” Alsup pushed back, asserting that many officials have been “terminated quickly” as of late.

Helland also argued that “personnel actions” such as these should not be challenged in federal courts. Those claims must instead go to the Merit Systems Protection Board (MSPB) or Federal Labor Relations Authority, independent administrative agencies.

He pointed to a determination by the Office of Special Counsel (OSC) Monday that six probationary employees were improperly terminated, which resulted in the MSPB halting those firings, as an example of utilizing the proper channels.

The director of OSC, Hampton Dellinger, was also fired by the Trump administration and is waging his own legal battle. A federal judge in Washington extended an order barring his removal through Saturday as she weighs further relief.

Dellinger’s lawsuit is one of several challenges to Trump’s firings of independent federal agency leaders with statutory removal protections.

Democratic appointees to multimember commissions like the Merit Systems Protection Board, National Labor Relations Board and Federal Labor Relations Authority have also challenged their firings.

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