San Fran Judge Orders Trump to Reinstate Tens of Thousands of Federal Workers

A federal judge on Thursday ordered federal agencies to rehire tens of thousands of probationary employees who were fired amid President Donald Trump’s turbulent effort to drastically shrink the federal bureaucracy.

U.S. District Judge William Alsup described the mass firings as a “sham” strategy by the government’s central human resources office to sidestep legal requirements for reducing the federal workforce.

Alsup, a San Francisco-based appointee of President Bill Clinton, ordered the Defense, Treasury, Energy, Interior, Agriculture and Veterans Affairs departments to “immediately” offer all fired probationary employees their jobs back. The Office of Personnel Management, the judge said, had made an “unlawful” decision to terminate them.

And even if it is upheld on appeal, it does not guarantee that all the workers will be able to get their jobs back permanently: Alsup made clear that agencies still have the authority to implement “reductions in force,” as long as they follow the proper procedures for doing so. Federal agencies are currently finalizing “reduction in force” plans.

Alsup issued his ruling in a lawsuit brought by federal employee unions. He lashed out at the Justice Department over its handling of the case, saying he believes that Trump administration lawyers were hiding the facts about who directed the mass firings.

“You will not bring the people in here to be cross-examined. You’re afraid to do so because you know cross examination would reveal the truth,” the judge said to a DOJ attorney during a hearing Thursday. “I tend to doubt that you’re telling me the truth. … I’m tired of seeing you stonewall on trying to get at the truth.”

Alsup also said the administration attempted to circumvent federal laws on reducing the workforce by attributing the firings to “performance” when that was not in fact the case. The judge called the move “a gimmick.”

“It is sad, a sad day when our government would fire some good employee and say it was based on performance when they know good and well that’s a lie,” Alsup said.

More than 5,000 probationary workers for USDA had already won a reprieve last week when the chair of a federal civil service board ordered them reinstated for 45 days. But Alsup is the first federal judge to order the administration to broadly unwind the firing spree that has roiled the federal workforce during Trump’s first two months in office.

Alsup emphasized that he was not ruling that the government is unable to lay off personnel at federal agencies, but that the Trump administration was in such a hurry to do so that it shunted aside federal laws that dictate the procedures for a so-called RIF.

“The words that I give you today should not be taken that some wild-and-crazy judge in San Francisco said that an administration cannot engage in a reduction in force,” Alsup said. “It can be done, if it’s done in accordance with the law.”

Alsup is also seeking answers about the administration’s position that fired federal workers should have to seek relief from two executive branch agencies tasked with supervising federal workplace issues: the Merit Systems Protection Board and the Federal Labor Relations Authority. The judge expressed concern that Trump’s effort to remove members of those boards might render them ineffective.

Alsup had ordered the acting head of OPM, Charles Ezell, to appear at the hearing Thursday so he could be cross-examined about his claims that the personnel office did not direct any firings but simply provided guidance to other agencies about how to carry out the dismissals.

However, Justice Department lawyers told Alsup earlier this week that Ezell would not appear, and the government withdrew a sworn declaration Ezell submitted earlier in the case. At one point Thursday, the judge reprimanded Assistant U.S. Attorney Kelsey Helland for the government’s decision not to make witnesses available.

“You’re not helping me get at the truth. You’re giving me press releases, sham documents,” the frustrated judge said, adding, “I’m getting mad at you and I shouldn’t. You’re trying to do your best, and I apologize.”

Helland, who sat alone at the table for government counsel, argued that the agencies made the firing decisions, and he said the timing was driven by the urgency of Trump’s agenda, not any moves by OPM.

“Everybody knew the new administration was prioritizing this and the political appointments wanted to comply with that administration priority,” the DOJ attorney said. “This was not an order by OPM.”

But the judge noted that some agencies told employees they were instructed by OPM to fire every probationary employee deemed non-essential.

Probationary status is extremely common in the federal workforce. Many newly hired employees are required to begin their tenure as probationary employees, and employees are also often required to spend time on probationary status after being promoted. Probationary employees do not enjoy many of the civil service protections as non-probationary workers.

One of the attorneys challenging the dismissals emphasized Thursday that some newly-promoted employees with lengthy tenure at agencies were caught up in the mass firings.

The suit the judge acted on Thursday was brought by federal employee labor unions along with non-profit groups that said their work would be negatively impacted by the firings in places like national parks and veterans’ hospitals.