A federal judge ordered agencies to update employee records “to reflect that their termination was not performance or conduct based” and to send individualized letters to each stating the same - but stopped short of ordering any to be rehired because so much has changed. Image: it:Westy72/iStock
By: FEDweek StaffA federal judge has held that the mass firings of probationary federal employees earlier this year were specifically directed by OPM, that the agency went beyond its powers by doing so, and were carried out through a “pre-determined, pretextual” citation of performance reasons.
However, William Alsup from the U.S. District Court for the Northern District of California stopped short of ordering that affected employees be rehired—as he did in an earlier order that later was stayed by the U.S. Supreme Court—saying that “too much water has now passed under the bridge” to do so.
“The terminated probationary employees have moved on with their lives and found new jobs. Many would no longer be willing or able to return to their posts. The agencies in question have also transformed in the intervening months by new executive priorities and sweeping reorganization. Many probationers would have no post to return to,” the opinion said.
Those employees—many thousands in six agencies at issue in the case brought by the AFGE unions and other parties—“nevertheless continue to be harmed by OPM’s pretextual termination ‘for performance,’” he wrote. That was a reference to boilerplate language used in the firing notices that did not include any description of individual performance problems as required by policy at the time—a requirement the OPM since has eliminated.
He ordered agencies to update their records “to reflect that their termination was not performance or conduct based” and to send individualized letters to each stating the same. Those letters further are not to contain any reference to the possibility of the order later being overturned by a higher court.
Judge Alsup found that OPM “lacked the authority to direct other agencies to terminate their probationary employees and violated the APA [Administrative Procedure Act] when it did so.” OPM had “discretion over the retention and termination of other agencies’ probationers” by controlling requests for exceptions; set deadlines for agencies to act; and directed them to fire employees under the “false pretenses” of performance grounds, he wrote.
OPM argument that it merely provided guidance a “sham”
The ruling further called a “sham” the documentation submitted by the government in arguing that OPM merely provided guidance and that agencies made the decisions. Those documents give incomplete information about OPM’s role in granting or denying exceptions and in some cases “post-date the relevant agency action,” it says.
That “leaves the reader with the feeling that he is being led, blindfolded, along a carefully plotted path through a dense, unseen wood,” Judge Alsup wrote.
He enjoined OPM from “ordering, directing, or telling any other federal agency to terminate the employment of any federal employee or group of federal employees” except under its authority—not at issue in the case—to order the removal of employees of other agencies on suitability grounds.
The AFGE called the ruling “another significant victory for federal employees and for all Americans. Judge Alsup’s decision makes clear that thousands of probationary workers were wrongfully fired, exposes the sham record the government relied upon, and requires the government to tell the wrongly terminated employees that OPM’s reasoning for firing them was false.”
The case is one of two filed against the probationary employee firings that initially resulted in orders blocking further firings and ordering reinstatement—orders that later were lifted. In the other, involving some two dozen agencies a federal appeals court recently ruled that the plaintiffs—a group of state attorneys general—lacked standing and ordered the trial court to dismiss the case.
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