WASHINGTON, D.C. (Bloomberg Law) — Federal employees are finding openings to overturn Trump administration terminations after a judge questioned the legality of the government’s firing memos and an independent board ordered some agencies to temporarily reinstate several workers.
A US judge in California on Thursday paused some terminations of federal workers and said the Office of Personnel Management’s directive to fire new hires known as probationary employees “is illegal, should be stopped, and rescinded.”
The Merit Systems Protection Board, which mediates federal-sector employment disputes, on Tuesday ordered agencies to return six terminated probationary employees to their jobs for 45 days while the Office of the Special Counsel investigates their firings.
Both the judge’s and the MSPB’s orders represent early signs that the White House doesn’t hold carte blanche in firing workers and that federal employees cut by executive fiat have opportunities to get their jobs back. However, federal workers’ attorneys don’t believe the holdings will do much to slow Trump down.
“The president believes he has the ultimate power to have anyone in his administration that he pleases,” said Michael Fallings, a managing partner at Tully Rinckey PLLC representing federal workers.
California Ruling
The pause in mass firings of federal workers ordered by a California judge is limited: Judge William Alsup of the US District Court for the Northern District of California only stopped firings at agencies involved in the lawsuit, such as the National Park Service, Bureau of Land Management, the Department of Veterans Affairs, and the National Science Foundation.
The ruling is “an important initial victory” for unions and fired workers, said Everett Kelley, national president of the American Federation of Government Employees. His union is trying to prove in the lawsuit that OPM, the federal government’s HR office, issued unlawful memos to fire probationary employees and failed to follow federal rules for cutting staff.
“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,” he said in a statement.
The temporary order could be struck down over lack of subject matter jurisidction, said Suzanne Summerlin, a federal worker-side attorney. Other unions lawsuits, including one over Elon Musk’s deferred resignation program, have been struck down for this issue
Federal law gives unions and employees the right to bring disputes to the Federal Labor Relations Authority and the MSPB. These groups must exhaust these internal options before going to court.
But both agencies have been crippled by leadership gaps and low resources in recent years. Trump is engaged in legal battles to fire both the MSPB Chair Cathy Harris and FLRA Chair Susan Grundmann.
“Courts will not take into account the fact that the agency is not functioning, that the president is trying to remove members or fails to appoint anyone,” Summerlin said.
Alsup said in his ruling from the bench that, while the court doesn’t have subject matter jurisdiction for the unions’ claims, it does for the claims brought by the nonprofits that joined in the lawsuit. The Coalition to Protect Americas National Parks, the Western Watersheds Project, and Vote Vets Action Fund do not have to clear those procedural hurdles because the FLRA and MSPB are not available to them, Alsup said.
