The order blocks the firing of thousands of DoD employees for now. OPM on Tuesday (March 4) rewrote and reposted a January 20 memo, which had told agencies to identify their probationary employees, noting their limited appeal rights. Image: Mark Van Scyoc/Shutterstock.com
By: FEDweek StaffUPDATED: A federal judge in California has followed a bench ruling of last Friday (February 28) with a written order pausing further layoffs of probationary employees in six agencies, with OPM meanwhile rewriting its memo to agencies in January that started the process, to deny that it ordered the firings of what has become tens of thousands government-wide.
The written order from U.S. District Judge William Alsup issues a temporary restraining order against further firings of probationary employees at NPS, BLM, VA, DOD, SBA, and FWS—the six agencies named in a suit by the AFGE, several other unions and several advocacy groups.
The order does not require that employees fired from those agencies be reinstated, though, nor does it apply to other agencies that similarly have fired probationary employees. However, by blocking further firings at those agencies, it protects the jobs of several thousand employees at DoD alone who were set to be fired otherwise and sets a potential precedent for more challenges on similar grounds.
The suit argues that the layoffs are being done in violation of requirements that even probationers must be given specific notice of performance deficiencies before being fired. It also contends that OPM exceeded its authority by ordering agencies to conduct layoffs that they had not planned.
In his order, Judge Alsup wrote that while OPM argued that it “did not direct agencies to terminate any particular probationary employees based on performance or misconduct, and did not create a ‘mass termination program,’” the plaintiffs “have mustered a mountain of evidence that points in the other direction, from a broad range of federal agencies.”
He cited statements from officials of those agencies telling probationers being fired—and in one case during testimony before Congress—that the decision was not the agency’s to make but rather had been directed by OPM through steps including the January memo and a February 14 email to agencies.
The written order builds on remarks Alsup made in his bench ruling that “OPM does not have any authority whatsoever, under any statute in the history of the universe” to order another agency to fire its own employees, and that the blanket nature of the firings—including using template emails that didn’t cite individual performance problems—characterized a directive, not merely guidance.
OPM on Tuesday (March 4) rewrote and reposted the January 20 memo, which had told agencies to identify their probationary employees and “promptly determine whether those employees should be retained at the agency” and which underscored that probationers lack the full appeal rights of tenured federal employees.
The revised version adds: “Please note that, by this memorandum, OPM is not directing agencies to take any specific performance-based actions regarding probationary employees. Agencies have ultimate decision-making authority over, and responsibility for, such personnel actions.”
Said the AFGE, “OPM’s revision of its Jan. 20 memo is a clear admission that it unlawfully directed federal agencies to carry out mass terminations of probationary employees – which aligns with Judge Alsup’s recent decision in our lawsuit challenging these illegal firings. Every agency should immediately rescind these unlawful terminations and reinstate everyone who was illegally fired.”
It’s unclear what impact the rewrite could have on the case, since the actions at issue arose from the original version. The judge’s written order further says that in addition to that memo, the “February 14 email, and all other efforts by OPM to direct the termination of employees at NPS, BLM, VA, DOD, SBA, and FWS are unlawful, invalid, and must be stopped and rescinded.”
The judge has scheduled further proceedings for March 13.
The ruling came days after the MSPB issued a 45-day stay on the firings of six employees and ordered them reinstated in what is effectively is a test case brought by the Office of Special Counsel that could serve as a precursor to a much broader challenge. That case also cites lack of specificity and says that agencies have effectively conducted reductions-in-force without following the laws and rules governing RIFs.
The case is separate from one brought by NTEU and several other unions challenging the executive order directing agencies to prepare for “large-scale” reductions in force, in which a federal judge refused to issue the requested injunction, saying the dispute should be brought first to the FLRA. In the California case, the judge made a similar ruling regarding the unions but said the other organizations had standing to sue in federal court.
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See also,
Top 10 Provisions in the Big Beautiful Bill of Interest to Federal Employees
A Pre-RIF Checklist for Every Federal Employee, From a Federal Employment Attorney
Work Longer or Take the FERS Supplement Now: Which is Better?
Doubling Your TSP (C Fund vs G Fund)
