A federal judge in California on Thursday ordered that the departments of Veterans Affairs, Defense, Energy, Interior, Agriculture and Treasury reinstate thousands of probationary employees who were fired last month.
The departments must “offer reinstatement to any and all probationary employees terminated on or about February 13,” U.S. District Judge William Alsup wrote, referring to the date when the Office of Personnel Management held a call with department and agency heads and directed them to fire probationary employees.
Alsup said the office’s directive to fire all probationary employees, in a written memo and the February phone call, was not legal.
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The office had provided departments and agencies with a template to use for firing the employees that said, “The Agency finds, based on your performance, that you have not demonstrated that your further employment at the Agency would be in the public interest.”
“It is sad, a sad day when our government would fire some good employee, and say it was based on performance, when they know good and well, that’s a lie,” Alsup said.
The judge added that there is nothing wrong with reductions in force “if it’s done correctly under the law.”
The Justice Department, which did not immediately respond to a request for comment, filed a notice of appeal later in the day.
In a statement, White House press secretary Karoline Leavitt told NBC News: “A single judge is attempting to unconstitutionally seize the power of hiring and firing from the Executive Branch. The President has the authority to exercise the power of the entire executive branch — singular district court judges cannot abuse the power of the entire judiciary to thwart the President’s agenda.”
“If a federal district court judge would like executive powers, they can try and run for President themselves. The Trump Administration will immediately fight back against this absurd and unconstitutional order,” she added.
Plaintiffs’ attorney Danielle Leonard argued the government knew what it was doing in going after probationary employees for removal, saying: “This has been the plan since the very beginning. Fire them all because they can’t appeal.”
Alsup expressed outrage at the beginning of the hearing, which had been scheduled to go over evidence, when the administration said the Office of Personnel Management’s acting director, Charles Ezell, would not testify as the judge had ordered.
“You’re not helping me get at the truth,” Alsup said, calling the information that the government did provide “press releases” and a “sham.”
“It upsets me, I want you to know that,” he said.
The judge also ordered that any further terminations of probationary employees must be made by the departments or agencies themselves, within the regulations outlined in the Civil Service Reform Act and the Reduction in Force Act.
Alsup further asked for a list of all fired probationary employees and an explanation of what the departments and agencies were doing to comply with the order.
Everett Kelley, president of the American Federation of Government Employees, one of the plaintiffs in the case, praised the ruling, saying it will “immediately reinstate tens of thousands of probationary federal employees who were illegally fired from their jobs by an administration hellbent on crippling federal agencies and their work on behalf of the American public.”
Alsup had previously found that he OPM directive was “illegal” and should be rescinded — which it later was — but had not previously directed the agencies to reinstate the workers.
“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,” he said last month.
An attorney for the Justice Department suggested then that fired employees should have their cases heard by the U.S. Merit Systems Protection Board instead of a federal judge.
Last week, that federal civil service board found that the firing of over 5,000 probationary employees from the Department of Agriculture may have been unlawful and directed that the employees be restored to their jobs for at least 45 days.
In court Thursday, a lawyer for the plaintiffs told the judge that while those employees had been restored to the agency’s payroll, they had not actually been put back to work.
At a hearing in a separate case involving probationary workers in Maryland, a federal judge indicated he might sign an order that would put all of the fired probationary workers back to work.
U.S. District Judge James Bredar made the comments after a hearing at which a coalition of states argued that the mass firings, allegedly for cause, were actually a “reduction in force” — a mass firing that requires the government to follow certain procedures.
The judge seemed sympathetic to that argument, saying: “This case isn’t about whether or not the government can terminate people. It’s about if they decide to terminate people, how they must do it.”
He said he would issue a written ruling on the case “promptly.”
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