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.
