Federal judge denies request to halt agency probationary firings

A federal judge in Washington denied a request by federal worker unions to halt the firing of probationary workers in the U.S. government, saying the court likely lacks the authority to hear the claims.

Instead, the claims brought by the National Treasury Employees Union and others must be brought before the Federal Labor Relations Authority, Judge Christopher Cooper of the U.S. District Court for the District of Columbia said in the Thursday opinion.

The ruling is a blow to efforts by unions to protect their members from the mass probationary employee firings taking place across the government and protect them from further efforts by the Trump administration to reduce the size of the federal workforce. 

In addition to halting the termination of probationary employees, the unions had also requested that the court halt anticipated reductions in force in federal agencies and the administration’s “deferred resignation” program, which gave employees an option to resign from their job effective at a future date and continue to get pay and benefits in the meantime. 

Another legal challenge to the deferred resignation program met a similar fate recently when a federal judge in Massachusetts ruled that the unions bringing that suit lacked standing.

Still, at least one other challenge to the probationary firings remains active. Several unions representing federal government workers filed a lawsuit Wednesday against the Office of Personnel Management, arguing it lacks the authority to tell other agencies to fire probationary workers.

The termination of probationary employees across the federal government at OPM’s instruction “unlawfully usurps the legislative authority of Congress,” which delegated the power to manage agencies and make decisions about their employees to agency heads, the unions alleged in a filing in the U.S. District Court for the Northern District of California. The effort also violates the Administrative Procedure Act, they said.

The unions that brought the suit are AFL-CIO affiliates American Federation of Government Employees and the American Federation of State, County and Municipal Employees, along with a San Francisco-based local chapter of AFGE and a nursing affiliate union of AFSCME. They similarly seek preliminary or permanent injunctive relief to set aside OPM’s actions as unlawful.

Agencies that have conducted probationary firings include, but aren’t limited to, the OPM itself and the National Science Foundation, which fired up to 170 workers Tuesday, according to FedScoop reporting. While agencies have said the firings were because of “performance,” workers and their unions have pushed back against those claims, saying there isn’t evidence of poor performance. 

The new lawsuit in the Northern District of California reiterates that position.

“OPM, the federal agency charged with implementing this nation’s employment laws, in one fell swoop has perpetrated one of the most massive employment frauds in the history of this country, telling tens of thousands of workers that they are being fired for performance reasons, when they most certainly were not,” the unions said in the complaint.

To support their claims, the unions in the new case referenced what employees at NSF were told about their terminations. According to the complaint, NSF told employees during a meeting about the firings that it had previously been up to the agency’s discretion to retain probationary employees and they chose to retain them all, but OPM made a superseding order Feb. 13 and required the science agency to terminate all probationary employees. 

Sources in the Tuesday meeting at NSF similarly told FedScoop that leaders said the firings were made at the direction of OPM.