Mass Firings Ruled Illegal
A judge says OPM has no authority to fire workers in other agencies.
WaPo (“Judge blocks Trump administration’s mass firings of federal workers“):
A federal judge on Thursday ordered the Office of Personnel Management to rescind directives that initiated the mass firing of probationary workers across the government, ruling that the terminations were probably illegal, as a group of labor unions argued in court.
U.S. District Judge William Alsup ordered OPM to rescind its previous directives to more than two dozen agencies, including the Department of Defense, the Park Service, the Bureau of Land Management, the National Science Foundation and others identified in a lawsuit. The ruling — a temporary restraint on the government that will be revisited in the coming weeks — is one of the biggest roadblocks so far to President Donald Trump’s effort to slash the federal workforce.
“Congress has given the authority to hire and fire to the agencies themselves. The Department of Defense, for example, has statutory authority to hire and fire,” Alsup said from the bench as he handed down the ruling Thursday evening in federal court in San Francisco. “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 at another agency. They can hire and fire their own employees.”
“Under any statute in the history of the universe” is an unusually bold declaration. Then again, Alsup is not, judging from available photographic evidence, a one-eyed fat man.
Alas, this ruling doesn’t strike me as a huge win for the fired workers. Presumably, the President could simply order agency heads to carry out the terminations rather than having them come from OPM. Far more helpful would be a ruling that mass firings under the guise of performance is obviously pretextual.
Beyond that, it looks like it will be at least two weeks before Alsup actually issues an order.
It was unclear how soon and whether the ruling might result in tangible benefits for federal workers who already have been let go. An OPM spokesperson said the agency had no immediate comment. In his remarks from the bench, the judge specifically blocked the Defense Department from proceeding with an effort to fire civilian employees on Friday. But he did not say what he expected to happen in detail at other agencies. A written order is expected later, and the judge said he would hold another court hearing on March 13.
Still, folks are pleased.
“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.”
Federal workers who had been fired in recent days reacted with joy to the judge’s ruling, as many attempted to parse whether it could get them their jobs back.
My strong hunch is no, at least not based on this narrow ruling. But Alsup seems to be hinting that the written order will get to the heart of the matter:
The Justice Department argued that the president has “inherent constitutional authority” to decide “how best to manage the Executive Branch, including whom to hire and remove, what conditions to place on continued employment, and what processes to employ in making these determinations.” Ezell said in a court filing that “only the highest-performing probationers in mission-critical areas demonstrate the necessary fitness or qualifications for continued employment.”
An assistant U.S. attorney, Kelsey Helland, argued Thursday that some agencies, including the Justice Department, simply ignored OPM’s communications about firing probationary employees. He said the unions and advocacy groups were “conflating a request from OPM with an order from OPM.”
The Trump administration attorneys also claimed in court papers that OPM had not ordered federal agencies to fire specific employees and did not create a “mass termination program” but rather a “focused review” process. Alsup was skeptical of that argument; multiple agency officials — from the Defense and Agriculture departments, the IRS, the Department of Veterans Affairs, and the National Science Foundation — have said OPM ordered them to fire probationary workers, according to court records.
“How could so much of the workforce be amputated, suddenly, overnight? It’s so irregular and so widespread and so aberrant in the history of our country. How could this all happen with each agency deciding on its own to do something so aberrational?” said Alsup, who was appointed to the bench by President Bill Clinton in 1999. “I don’t believe it.”
So, he does indeed seem prepared to declare the firings pretextual. And that would be a huge win for the fired employees, as it would preclude simply re-firing them en masse on agency letterhead.
But DOJ’s Ezell is making a broader claim: the President has the inherent authority to define “necessary fitness or qualifications for continued employment.” Judge Alsup believes otherwise: that Congress has given that authority to the agencies themselves. I suspect this is the issue that the matter will ultimately turn upon and that Alsup will not have the final word on that.
One way this could play out is the Crow & Leo Court will rule for the felon’s regime.
The other is the regime simply ignores the court’s orders, as they’ve already been doing in other matters.
And then what?
In this time when almost every report out of Washington drives me closer to drink, thanks for slipping in one of my favorite True Grit references to lighten the load of reading about this administration.
To paraphrase an old question, “How many of the personnel and payroll systems do the court’s programmers control?”
I haven’t read all the legislation but when Congress directs a department or independent agency, the direction is to the secretary or appointed agency head, the constitutional officer appointed by the President with advise and consent of the Senate. That is, the “agencies” do not have some nebulous authority to hire and fire, but the power rests with a constitutional officer who has delegated that authority sometime in the past.
Also, it’s been decades since Congress passed authorizing legislation and mostly only bulk appropriations. And they’ve left the division of the appropriations between labor and operations has been left to the agency heads. In general, past legislation has been passed that caps agency head counts but I know of none that forces hiring/retention of new employees or even long time employees if the activity is being ended.
@JKB: If you are going to disagree with a Federal Judge about what the law says, I think it behooves you to read the law(s) in question. Also, provide a link to the pertaining said law.
You are certainly not the first to do something like this. People do this with questions of law, science, and history all the time, including in my offline life.
Can’t President Musk just direct the Cabinet Secretary’s to direct the Agency Heads to fire people? What am I missing?
In DoD the firings are happening today. I don’t think this injunction applies to those as there was some level of review and agencies had some discretion.
A directorate a friend works for, for example, saved all their probationary employees by promising not to hire into current unfilled positions. But another organization only sought to exempt a handful of people – the rest are getting formally notified of termination today, although they’ve known it was coming for more than a week. Some have tried a blanket exemption, but as far as I know, that was rejected.
At least from a legal perspective the firings in DoD have had some due diligence and are probably legal, but the effects will still be bad in many cases, especially organizations who didn’t, couldn’t, or wouldn’t successfully exempt critical roles.
And so I think you are right – Trump could just tell other agencies to do what DoD did. There will still be a lot of firings, but they won’t be blanket firings.
IANAL, but it’s pretty clear the authority to hire and fire rests with agencies, not OPM.
However, OPM is like an HR department, they set the broad policies, guidelines, and regulations for hiring and firing and those certainly can compel agencies to fire people in order to align with those. For example, when Trump eliminated DEI functions, that directive was operationalized by OPM and agencies had to follow it – but the directive also flowed down the operational chain via the President’s cabinet. Same with the hiring freeze.
If a probationary employee can be fired for no reason at all, I continue to be confused how the firings can be pretextual. I understand that pretty much all of these employees got the same b-s- notice about their work not being in public interest. I have assumed the only purpose of the statement was gratuitous cruelty and demorilization of the workforce. It would be lovely if the administration ended up getting hung on those statements.
The bigger thing [he says waving his hand broadly] is this whole shell game about who is doing what to whom. Musk is repeatedly identified – including by the administration – as the source of all these moves. But then we are told that Musk is no more than advisor to the president. He’s not even connected to DOGE (and has anyone heard that putative DOGE director’s name uttered since she was identified?) But the president is not actually issuing any of these directives, he’s just agreeing with Musk. This goes somewhat to JKB‘s point, but even if the president has some authority to direct agency hiring (which I would agree that – indirectly – he has), he has done nothing to exercise that authority. In a real government, he would give some useable instruction to his agency heads about priorities for hiring and firing, but that apparently has not happened.
And then there’s this further b-s- about this simply being a suggestion from OPM. A suggestion that results in the same indiscriminate letters going out to the same demographic of people without the time for that suggestion even to alight on the desk of the agency head? That is so coincidental. This is all just some s-storm of non-responsibility. I can imagine it would make a judge’s head spin.
A Federal judge ruled firing Federal employees is illegal.
Whataboutism: Federal judge Kearney ruled in Fields v. Philadelphia recording the police is illegal and not protected by the 1st amendment.
@Andy:
Oh my sweet summer child Andy, don’t you realize that effective “turnarounds” are handled through high-level blanket firings with no idea to operational impact. I mean that’s what I’ve heard from people who stake their claims on turning around failing RV companies… which as we all know are definitely far more complex and life critical than… check notes… the DoD–let alone the notably even less complex Executive Branch of the Federal Government.
In all seriousness, if the administration had taken the approach you mentioned from the start, things would have made more sense. But this has never really been about cost cutting or closing the deficit. Serious people who talk about the “existential threat of debt” should realize that cutting federal head count (and refusing to pay for goods and services already completed) mean absolutely nothing in the face of TRILLIONS in tax cuts.
And that’s before we get to the impact on the delivery of government services (including tracking down and prosecuting the fraud, waste, and abuse they also claim to care so much about).
@Joe:
As envisioned, the purpose of the probationary period is to evaluate the person to ensure their suitability for the position because once the period expires, it’s extremely difficult to get someone fired, even for cause.
So it’s not totally true that probationary employees can be fired for no reason at all—it’s just that if they are fired, they have very little means to contest that decision. In other words, the relative ease of firing employees makes arbitrariness possible because probationary employees have extremely limited procedural protections outside some narrow categories (like firing based on race, gender, marital status, etc.).
The guidance says they are only supposed to be fired for poor performance, bad conduct, or are deemed generally unsuitable for the position, but I don’t know enough to understand just how much of a requirement that is. The whole idea is to give supervisors discretion.
Like a lot of things with Trump, the system doesn’t really account for what he’s doing and wants to do. It was not designed to consider the possibility that a President would want to arbitrarily fire all probationary employees and bypass the supervisory chain.
The administration has tried to gloss over these firings by telling people in the termination notices that they are being fired for substandard performance. These employees don’t have the procedural rights to contest this, so that’s why this is going to the courts in this particular way.
@Matt Bernius:
I want to be clear I’m not defending any of this, just trying to explain how things work.
The DoD firings are happening today and from everything I’ve seen, they are not subject to this injunction because, unlike most other agencies, the DoD was given special dispensation and decisions were pushed down to lower levels that had discretion to exempt some probationary employees. From the perspective of the legality of actions, I think that matters a great deal. From the perspective of effective governance, I’ve been quite clear from the beginning that all of this is exceedingly stupid, even if reform is the goal – and I agree with you that it’s not. But giving organizations who will have to live and operate with these manpower changes a say in who stays and who goes is certainly better than the blanket firings happening in other agencies.
Just a couple of other examples from other friends in a DoD and intel community:
– In one case, an organization has wanted to fire a probationary employee because they just weren’t up to this job and were getting ready to do that when all this shit came down. But they opted to exempt him because they are concerned that they won’t be allowed to get a new hire if he gets fired. Not exempting him tells OPM and the parent agency that this position is not important, but it’s actually one of their most critical roles. So they faced a dilemma and decided it was better to have someone in the position, even if he’s not good, rather than risk it being empty and prevented from filling it.
– In another case, I have a friend who is officially a couple of years from retirement. He, and some of his peers would like to take advantage of VERA (voluntary early retirement), but because they are excepted service employees working in the intel community, VERA is denied. Meanwhile, his agency still has to cut many probationary employees. So, even in agencies the Trump administration identifies as essential, the manpower decisions are still exceedingly stupid.
@Andy: My wife just heard from a friend who works as a mental health professional for the Defense Health Agency at Joint Base San Antonio and they are all worried about what is coming down.
@Paul L.:
I have no idea what the hell that has to do with anything but that ruling was quickly overruled by the 3rd Circuit—eight years ago now.
Andy- I am not so sure about all of the DoD being exempted. Nephew and significant other are visiting today and he does logistics for a branch of the military. First, their general officer is being fired as she is considered a DEI hire. Second, he has already had to fire some probationary staff. He has asked for exemptions for 5 more so the exemptions have to be approved. He doesnt know who will approve or disapprove them. If the DoD were truly exempt why has he already had to fire some people and why does he have to ask for exemptions now?
Steve
@steve:
Steve,
It’s not that all of DoD (and the intel community and a handful of other agencies) is being exempted and totally protected from probationary firings – it’s that DoD, unlike many other agencies, can give exemptions to some probationary employees to retain them. In most other agencies there was zero opportunity for any exemptions – all probationary employees were/are being fired.
The result is that a lot of probationary employees are getting fired in the DoD, but not all of them.
And Elon’s send 5 bullets email is back, this time in an officially sanctioned way.
@Andy: “What did you do this week?” emails and “Rank your employees every year and then lay off the bottom 10%” strategy are sure signs of bad management.
I’m wondering of elements of DoD’s “administrative state” compelled them to avoid the lazy and destructive firing processes used by the administration’s henchmen on behalf of other departments.
One week ago DoD announced “We anticipate reducing the Department’s civilian workforce by 5-8%”, and “We expect approximately 5,400 probationary workers will be released beginning next week as part of this initial effort, after which we will implement a hiring freeze while we conduct a further analysis of our personnel needs…” Since DoD reportedly has about 55,000 probationary employees, the first planned cuts are about 10 percent of that group. That’s terrible for those folks, but at least what DoD is doing smacks of a process. It remains to be heard what any fired DoD employees will have to say about the rationale used for firing them, and whether that reflects their reality.
@Andy: Well, that’s one sure way to increase the efficient use of each employee’s 40 paid hours!!
@Andy:
Andy, to be clear, I didn’t think you were defending any of this at all. My post was directed at some regular “smarter than the rest of us libs” posters who are trying to defend these actions by citing their experience “turning around” failing RV companies (Hi Jack/Drew/Guaraldi/Conner/Whatever your next name will be after you have another epic flameout and rage quit the site for a couple weeks).
I also wanted to call out that what you wrote here:
Is a much better approach to this situation. Though in the end, it needs to be stated that there is no good way of approaching these cuts because these cuts are being made for purely ideological purposes (destroying the Federal Government) versus any real interest in reform and making the government run better.
Apologies for being so unclear.
And repeating this because it gets to that central point:
@James Joyner:
It’s just Paul L’s usual nihilistic bothsiderism. Sadly, it’s the only way he can function, given the deep, deep cognitive dissonance of his positions.
@Joe: The thing is, we weren’t supposed to be fired for no reason at all. We were supposed to be fired *after* a formal, documented evaluation of our performance.
Many of the fired employees in the Valentine’s Day Massacre (such as myself) hadn’t been with the agency long enough to get our first EPAP. My supervisor confirmed informally that no one within the Chain of Command had asked him whether any of his probationary employees were in mission-critical positions or if any of his probationary employees were failing to meet the expectations of their positions.
@James Joyner:
I guess Quickly for the Federal appeals courts.
ruled Feb 19, 2016 overturned July 7, 2017
@Scott: The head of the DHA, a black woman (and 3-star general), was fired today.
@Kingdaddy:
As much as I hate writing “What did you do this week?” emails, I recognize that I am much happier and better motivated when I do them.
It might be that it’s just hard to quantify what I’ve done a lot of the time (There’s no pile of gutted pigs or assembled cars I can point to), which simultaneously makes those emails hard to write and makes it hard to feel like I accomplished something.
It’s also a nice ritual to end the workweek — it’s like writing “I’m out of here, bitches, the work week is over.”
@Gustopher: I used “What did you do last week” technique (basically a job diary) for my team as a management tool. One, I had my own job and I traveled a lot. Two, it was to keep track for evaluation purposes. Three, each team member had to know what the others were doing so all were shared. It worked pretty well to keep the train running smoothly.
@Gromitt Gunn: Sorry this happened to you. There is no sentient person in America who thinks the statements in these notices have any basis in reality, let alone an individual assessment.