A federal judge in San Francisco has changed his mind and ruled that unions representing federal workers can sue over the Trump administration’s mass firings of recently hired government employees in court rather than challenging them before federal agencies.
US District Judge William Alsup, in a written order late Monday said two federal labor boards have no particular expertise on whether the US Office of Personnel Management violated the US Constitution by directing agencies to fire roughly 25,000 probationary employees, the central issue in the lawsuit.
Alsup, on March 13, had already ordered six agencies to reinstate about 17,000 workers who had lost their jobs as part of President Donald Trump’s broader purge of the federal workforce, pending further litigation. Nonprofit groups and the state of Washington had joined four unions in filing the lawsuit.
The Trump administration on Monday asked the US Supreme Court to block Alsup’s order while it appeals.
Alsup’s decision on Monday breaks with three other federal judges who said in preliminary rulings last month that unions could not sue in court over the Trump administration’s mass firings and other policies.
The American Federation of Government Employees and the American Federation of State, County and Municipal Employees, who sued along with two affiliates, did not immediately have a comment. The US Department of Justice did not immediately respond to a request for comment.
In Monday’s order, Alsup said it could be futile for workers and unions to appeal firings to the Merit Systems Protection Board and Federal Labor Relations Authority because of recent political upheaval at the agencies.
“The government here pretends that the constitutional claims are … intertwined with or embedded in matters on which the MSPB and the FLRA are expert,” Alsup wrote. “But defendants point to no specific fact or issue in our circumstances.”
Alsup, during a hearing in February, had ruled that he likely lacked jurisdiction over claims by the unions, but not the other plaintiffs. He also ruled at the time that OPM did not have the power to direct agencies to fire workers.
Probationary employees typically have less than a year of service in their current roles, though some are longtime federal workers, and they have fewer job protections than other government employees. OPM has said that it merely asked agencies to identify probationary workers who could be terminated and did not order any firings.
Federal employees are generally required to appeal their individual terminations to the three-member MSPB, and unions can bring challenges to the FLRA when their members are fired.
Alsup at the February hearing said that because the federal Civil Service Reform Act designated those agencies as the exclusive avenues for federal employees to challenge their firings, he likely could not hear claims by the unions.
But after a closer look, the judge on Monday said the challenge to OPM’s authority to order mass firings was distinct from the individual claims that must go through the administrative process.
He also noted that Trump fired the head of the Office of Special Counsel, which can petition the merit board to block mass firings, and is attempting to remove Democratic members of the merit board and the FLRA. The Trump administration is appealing decisions that reinstated those officials.
