Judge orders probationary workers back in 19 states

A federal judge has stayed what he called “likely unlawful mass terminations” of probationary federal employees but narrowed the scope of his injunction to the 19 states and the District of Columbia that sued the federal government.

U.S. District Judge James Bredar in Maryland had previously halted all layoffs of probationary employees at the agencies but decided against a nationwide injunction in his order issued late Tuesday, reasoning that “it is possible to substantially stop the harms inflicted on the states that did sue without extending judicial authority over those that didn't.”

Bredar ordered the workers back by April 8. USDA, EPA and the Department of Health and Human Services are among about 20 departments and independent agencies named in the lawsuit, but USDA probationary employees have already been returning to work gradually, part of a phased-in approach the department announced March 11 after a separate decision from the Merit Systems Protection Board.

Another federal judge, in California, issued a similar order affecting USDA last month; that order is currently being appealed to the Supreme Court.

In total, about 24,000 probationary employees were terminated across the federal government. Approximately 5,700 workers at USDA were affected, according to the agency’s estimate. At HHS, the number is 3,248, while at EPA the number was 419, but Bredar's opinion did not have a breakdown by state.

He said the agencies “probably broke the laws that regulate en masse terminations of government employee," which he concluded were actually reductions in force that require 60 days’ notice.

Because states did not get that advance notice, “as contemplated by the RIF statute and accompanying regulations, they were caught flat-footed and have had to scramble to respond,” Bredar said in his opinion.

The states “have incurred or expect to imminently incur costs resulting from, [among other things], processing and investigating unemployment benefit applications, diverting resources from other state programs, and loss of revenue from taxes on the wages of probationary employees,” Bredar said in his opinion.

The plaintiffs in the lawsuit are: Connecticut, Oregon, Minnesota, Maryland, Rhode Island, New York, Wisconsin, New Jersey, Illinois, Massachusetts, Nevada, Colorado, District Of Columbia, Hawaii, People of the State of Michigan, New Mexico, Delaware, Arizona, Vermont and California.

The Office of Personnel Management issued a memo to federal agencies Feb. 14 directing them to terminate probationary employees who were not “mission-critical” by Feb. 17.

A former OPM director stated in a declaration submitted to the court that, “In my experience, and under the laws and regulations that apply to federal employment with which I am familiar, any agency that wished to release an individual, including a probationary individual from employment, would conduct an individualized assessment of performance. If the news reports are correct about the volume of the terminations, it is not possible for these agencies to have done proper assessments of all of these employees. Nor is it plausible that all these employees have performance issues.”

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