Judge orders Trump administration to rescind directives on probationary employee firings

A federal judge on Thursday ordered the Trump administration to rescind directives that caused the mass firings of recent hires and other federal employees on their probationary periods. 

The Office of Personnel Management does not have the authority to order the firings, Judge William Alsup from the U.S. District for Northern California said, voicing incredulity of the administration’s argument that it had opted to retain only the highest-performing in mission-critical roles. Alsup’s temporary restraining order did not appear to reinstate those who were already fired, though the full impact of the decision was not immediately clear. The judge said he would follow up shortly with more details on his decision. 

“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,” Alsup said.

The American Federation of Government Employees and other groups brought the suit, arguing the Trump administration had ignored federal laws governing probationary employee staff and had essentially issued reductions in force without following the proper procedures. 

OPM and the Justice Department had argued AFGE did not bring the case to the proper jurisdiction and should instead seek remediation before the Federal Labor Relations Authority or the Merit Systems Protection Board. They also argued the president holds the authority to hire and fire anyone he wants in the executive branch. 

Alsup said, however, that firing federal workers without proper cause is "just not right in our country." He will next hold a hearing on March 13. 

The Trump administration posited it never ordered the firings, despite previously announcing it had done so. On Feb. 13, OPM had a call with agency human resources leaders directing them to begin terminating employees in their probationary periods, a source familiar told Government Executive at the time. That call was widely reported. On Feb. 14, it sent a follow up memo instructing agencies to “separate probationary employees that you have not identified as mission-critical no later than end of day Monday, 2/17.” 

Those orders followed an OPM directive issued shortly after President Trump’s inauguration that required all agencies to compile lists of their probationary employees and send them to OPM. The judge ordered the administration rescind both that Jan. 20 guidance and the Feb. 14 memo. 

Alsup said it was unreasonable to suggest that agencies across government simultaneously decided to fire probationary employees on their own volition, and the nation cannot “run our agencies with lies.”

Everett Kelley, AFGE's president, called the decision an "initial victory." 

"OPM’s direction to agencies to engage in the indiscriminate firing of federal probationary employees is illegal, plain and simple, and our union will keep fighting until we put a stop to these demoralizing and damaging attacks on our civil service once and for all," Kelley said. 

The decision marked the second setback the Trump administration has faced on its probationary firings. At the request of the Office of Special Counsel, the Merit Systems Protection Board ordered six fired probationary employees to be at least temporarily reinstated into their jobs. MSPB affirmed OSC’s findings that the firings were likely unlawful, and the latter agency is now investigating how to expand its recommendations for a much broader population.

The Trump administration earlier this month began firing thousands of federal employees who are in their probationary periods, typically those hired within the past one-to-two years depending on their hiring mechanism. Such workers have weaker civil service job protections. The administration has, in some cases, included longtime government employees that were recently hired or promoted into new positions, though the legal rationale for quickly dismissing those workers is less clear.