Trump’s mass firings of federal workers goes before court : NPR

A federal judge in San Francisco will weigh whether to block the Trump administration’s mass firing of probationary employees —typically those in their first or second year in a job.

U.S. District Judge William Alsup is hearing arguments Thursday afternoon in a lawsuit filed by a coalition of labor unions and civic organizations. They allege that the U.S. Office of Personnel Management (OPM) unlawfully ordered agencies to carry out the firings.

The plaintiffs have asked the court to not just halt the firings, but to order the government to provide a list of all employees who had been fired and “take all necessary steps” to reinstate them.

Underpinning their argument is the fact that, while OPM handles many human resource functions for the federal workforce, it does not have Congressional authority to hire or fire employees of other agencies.

Tens of thousands of probationary employees across the government have been fired over the past month. The notices often share similar language, despite being sent by different agencies. Often, they cite a performance issue, despite the employee having no record of performance problems. Attorneys for the unions charge agencies fired these employees because OPM directed them to do so.

“Statements from officials at multiple federal agencies admit that the agencies carried out the terminations not at their own discretion, but on the direct orders of OPM,” the unions’ attorneys wrote in a court filing.

Attorneys for the Trump administration denied in their own court filing that OPM had created a “mass termination program” as the plaintiffs allege, or otherwise directed agencies to terminate any particular employees based on performance or misconduct.

“OPM asked agencies to engage in a focused review of probationers based on how their performance was advancing the agencies’ mission, and allowed them at all times to exclude whomever they wanted,” wrote OPM acting director Charles Ezell in a signed declaration to the court.

Other documents submitted to the court suggest otherwise.

An OPM memo to agencies

An OPM memo to human resource officers dated Feb. 14 states, “We have asked that you separate probationary employees that you have not identified as mission-critical no later than end of the day Monday, 2/17. We have attached a template letter.”

The letter also provides guidance on how agencies should measure performance.

“An employee’s performance must be viewed through the current needs and best interest of the government, in light of the President’s directive to dramatically reduce the size of the federal workforce,” the letter reads.

In their court filing, the unions’ attorneys said that guidance “has no basis in law,” writing “Neither OPM nor any agency may lawfully terminate a probationary employee based on performance for reasons that have nothing to do with the employee’s performance.”

The unions also pointed to Congressional testimony given on Tuesday by Tracey Therit, chief human capital officer for the Department of Veterans Affairs, to demonstrate that agencies were acting on OPM’s orders when they fired probationary employees.

In answer to a question from Rep. Mark Takano, D-Calif., about whether anyone had ordered her to carry out the terminations of approximately 1,400 probationary employees at the VA, Therit responded, “There was direction from the Office of Personnel Management.”

Therit also acknowledged that while her signature was on the termination letters that employees received, “the memo was provided,” although she declined to say by whom.

A question of standing

Beyond the issue of who ordered the firings of probationary employees, the Trump administration in court filings put forward two arguments that other judges, weighing other cases involving federal workers, have found compelling.

First, government attorneys argued that the unions and civic organizations that brought the lawsuit lack standing to do so “because their asserted harms are far too speculative and they cannot seek injunctive relief on behalf of third-party federal employees who are not before this Court.”

The civic groups countered that argument by noting the harm their members will suffer as a result of the firings. One veterans group, for example, noted that veterans would have problems getting rides to medical appointments because the VA employee in charge of a transportation program had been fired.

The government’s attorneys also argued that the court lacked jurisdiction to hear this case, because challenges to federal employee terminations should be handled by the independent federal agencies Congress established to resolve such labor disputes.

In fact, there is a separate complaint winding its way through that system. Earlier this week, the Merit Systems Protection Board ordered six fired federal employees temporarily reinstated pending further investigation of their firings by the Office of Special Counsel.

Special Counsel Hampton Dellinger is exploring ways to seek relief for a broader group of people similarly fired, his office said.

Have information you want to share about ongoing changes across the federal government? NPR’s Andrea Hsu can be contacted through encrypted communications on Signal at andreahsu.08.