Judge finds mass firings of federal probationary workers were likely unlawful

SAN FRANCISCO (AP) — A federal judge in San Francisco on Thursday found that the mass firings of probationary employees were likely unlawful, granting temporary relief to a coalition of labor unions and organizations that has sued to stop the Trump administration’s massive dismantling of the federal workforce.

U.S. District Judge William Alsup ordered the Office of Personnel Management to inform certain federal agencies that it had no authority to order the firings of probationary employees, including at the Department of Defense.

“OPM does not have any authority whatsoever, under any statute in the history of the universe,” to hire or fire any employees but its own, Alsup said.

The complaint filed by five labor unions and five nonprofit organizations is among multiple lawsuits pushing back on the administration’s efforts to shrink a workforce that Trump has called bloated and sloppy. Thousands of probationary employees have already been fired, and his administration is now aiming at career officials with civil service protection.

Lawyers for the government agree that the office has no authority to hire or fire employees in other agencies.

But they said the Office of Personnel Management asked agencies to review and determine whether employees on probation were fit for continued employment. They also said that probationary employees are not guaranteed employment and that only the highest performing and mission-critical employees should be hired.

“I think plaintiffs are conflating a request by OPM with an order by OPM,” said Kelsey Helland, an assistant U.S. attorney in court Thursday.

Attorneys for the coalition cheered the order, although it does not mean that fired employees will automatically be rehired or that future firings will not occur.

“What it means in practical effects is the agencies of the federal government should hear the court’s warning that that order was unlawful,” said Danielle Leonard, an attorney for the coalition, after the hearing.

“This ruling by Judge Alsup is an important initial victory for patriotic Americans across this country who were illegally fired from their jobs by an agency that had no authority to do so,” said Everett Kelley, national president of the American Federation of Government Employees.

“These are rank-and-file workers who joined the federal government to make a difference in their communities, only to be suddenly terminated due to this administration’s disdain for federal employees and desire to privatize their work.”

An email seeking comment from the Office of Personnel Management was not immediately returned Thursday. Michelle Lo, an assistant U.S. attorney with the Department of Justice, declined to comment.

Alsup ordered the personnel office to inform a limited number of federal agencies represented by the five nonprofits that are plaintiffs in the lawsuit, which include veterans, parks, small businesses and defense. He seemed particularly troubled by firings expected at the Department of Defense.

He also ordered the acting head of the personnel office, Charles Ezell, to testify in court about the nature of a Feb. 13 phone call in which agency heads were told to fire probationary employees.

“The agencies could thumb their noses at OPM if they wanted to if it’s guidance, but if it’s an order, or cast as an order, the agencies may think they have to comply,” he said.

Probationary employees say they received a template email

There are an estimated 200,000 probationary workers — generally employees who have less than a year on the job — across federal agencies. About 15,000 are employed in California, providing services ranging from fire prevention to veterans’ care, the complaint says.

Elon Musk has led the purge through the newly created Department of Government Efficiency, roiling the workforce with demands including a Saturday email sent through the personnel office ordering workers to list five things they did last week or risk getting fired. The Office of Personnel Management later said that the edict was voluntary, although workers could face similar requests in the future.

The plaintiffs said in their complaint that numerous agencies informed workers that the personnel office had ordered the terminations, with an order to use a template e-mail informing workers their firing was for performance reasons.

Probationary employees of the National Science Foundation, for example, were told by the foundation that it had decided to retain its workers but was overruled by the Office of Personnel Management, according to the complaint.

Unions have recently struck out with two other federal judges.

A judge in Washington, D.C., last week denied a motion from unions to temporarily block layoffs because he found their complaint should be heard in federal labor court. Earlier this month, a judge in Massachusetts said unions suing over a deferred resignation offer weren’t directly affected and so lacked legal standing to challenge it.

Alsup said labor unions likely lack legal standing to sue, but the nonprofit organizations likely have cause because their members will be denied government services resulting from the loss of workers, such as the enjoyment of parks, mental health services for veterans and loans for small businesses.

Judge calls probationary employees ‘the lifeblood of our government’

He was appalled that probationary employees were fired with a mark against them for poor performance.

“Probationary employees are the lifeblood of our government,” he said, adding that they are younger employees who work their way up.

Alsup, who was appointed by President Bill Clinton, a Democrat, has presided over many high-profile cases and is known for his blunt talk. He oversaw the criminal probation of Pacific Gas & Electric, which he called a “ continuing menace to California.”

The judge plans to issue a written order. An evidentiary hearing is set for March 13.

Janie Har, The Associated Press