This post first appeared on Government Executive. Read the original article.
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Some federal agencies are continuing to fire their recently hired or newly promoted staff despite a court ruling that deemed the justification for those firings unlawful, while others are responding to that decision by rehiring those they had already terminated.
A federal judge last week said the Trump administration—through the Office of Personnel Managmenet—directing the mass firings of employees on their probationary periods was illegal, though the judge did not directly call for the terminations to cease or for agencies to recall those they had already let go. The ruling applied to only a handful of agencies whose employees were party to the case brought by the American Federation of Government Employees and other groups.
On Friday and over the weekend, the departments of Commerce and Homeland Security moved forward with some firings of probationary employees. The Commerce terminations were focused on the U.S. Patent and Trademark Office, according to a source familiar with the actions, where 86 employees were let go. DHS’ firings were focused on headquarters staff after the agency previously terminated probationers at most of its sub-agencies, and at least gutted the Center for Prevention Programs and Partnerships.
That division, known as CP3, works with state and local governments to enhance their defenses against targeted violence and terrorism. Employees there received termination notices late Friday and late Saturday nights, according to impacted workers who spoke with Government Executive. One individual briefed on the situation estimated one-third of the small office of a few dozen employees had been fired.
While at Commerce USPTO moved forward with firings, at least one of its divisions hit the brakes on planned dismissals over the court’s ruling. The National Institute of Standards and Technology had planned to also fire probationary staff on Friday, according to a source familiar with internal decision making, but paused those actions in light of the judge’s decision. The Defense Department was scheduled to move forward with its termination of 5,400 employees on Friday, according to court filings and public statements from the Pentagon, but has at least temporarily paused those firings.
Defense, along with the National Park Service, Bureau of Land Management, Veterans Affairs Department, Small Business Administration and Fish and Wildlife Service, were directly cited in U.S. District Judge William Alsup’s ruling. Alsup initially included the National Science Foundation in his decision but issued a correction to remove it.
Still, NSF has decided to re-hire all of the probationary employees it fired last month. It has fired about 170 employees in total, but roughly half of those were considered “intermittent experts” who do not work full-time for the agency. Those workers will not be rehired.
NSF Director Sethuraman Panchanathan “ordered the immediate reinstatement of terminated probationers with backpay and no break in service based on updated guidance from OPM and the Federal Courts,” agency spokesman Mike England said. “Every NSF employee makes important contributions to the NSF mission and the national science, engineering, and technology enterprise everyday.”
He added that NSF “welcomes the return” of its probationers who will help ensure the United States “remains the global leader in scientific discovery and innovation.” One NSF employee impacted by the firings told Government Executive he had not yet heard from the agency Monday morning, but was “cautiously optimistic” about the decision.
Specifically, Alsup ordered OPM to revoke the memorandum it released shortly after Trump’s inauguration requiring agencies to gather names of probationary staff and justify each role, as well as a written directive from Feb. 13 instructing agencies to begin firing those workers and to complete that task by Feb. 17.
Those documents 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 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,” Alsup said from the bench in the U.S. District Court for Northern California last week.
The decision marked the second setback the Trump administration has faced on its probationary firings. At the request of the Office of Special Counsel, the Merit Systems Protection Board ordered six fired probationary employees to be at least temporarily reinstated into their jobs. MSPB affirmed OSC’s findings that the firings were likely unlawful, and the latter agency is now investigating how to expand its recommendations for a much broader population.
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