A district court’s injunction, a Justice Department attorney said Tuesday, is precluding agencies from potentially sending follow-up letters to probationary employees "clarifying the reasons for termination.” 

A district court’s injunction, a Justice Department attorney said Tuesday, is precluding agencies from potentially sending follow-up letters to probationary employees "clarifying the reasons for termination.”  SimpleImages / Getty Images

The Trump administration is considering notifying probationary employees they were fired for cause, actually

The proposal comes despite a new audit finding 99.5% of the 7,300 fired IRS probationers had received fully successful performance ratings, or no ratings at all.

The Trump administration asked a federal appeals court on Tuesday to toss previously issued rulings that found its mass firings of recently hired and promoted federal employees unlawful, arguing the existence of the orders is continuing to impact its management of the civil service. 

The Supreme Court in April already overturned a district judge’s injunction that prevented the firings of employees in their probationary periods, but the order has not yet been formally revoked. Following the high court’s ruling, the district judge in California demanded federal agencies send letters to impacted workers notifying them that their dismissals were part of an effort to shrink government and not due to their individual performances. Much of the argument at an appeals court on Tuesday focused on that second order. 

While agencies cited performance in the termination letters they sent probationary employees in February, they generally did not conduct individual assessments of the workers before firing them and followed guidance from the Office of Personnel Management to dismiss the recently hired staff. Due to the initial injunctions, most of those probationers have since been hired back. The majority of them remain on the job, though agencies such as the departments of Commerce, Health and Human Services and Housing and Urban Development have re-fired their “trial period” staff

Attorneys for the Trump administration on Tuesday argued before the U.S. Court of Appeals for the Ninth Circuit that the district judge’s orders must be formally dismissed. While the letters stating the firings were not for performance were delivered months ago, the attorneys said, the injunction is still having an impact. 

“The government continues to be bound to those letters that it was required to send out to those employees,” a Justice Department lawyer said. “And so the government is not able to, for example, send a subsequent letter saying we disagree with that letter, we never wished to send it.” 

The district court’s injunction, the attorney added, is precluding agencies from potentially sending follow-up letters "clarifying the reasons for termination.” 

Danielle Leonard, an attorney for the plaintiffs on the case, made up of federal employee unions and advocacy groups, argued the appeals court should dismiss the government’s appeal as moot rather than formally rescind the injunctions. The Supreme Court has already stayed the ban on firings and the letters stating the terminations were not for cause cannot be unsent, she said. 

The argument before the appeals court took place as the Internal Revenue Service’s inspector general issued a new report that found 99.5% of the 7,300 probationary employees the agency fired had either received at least “fully successful” performance reviews or had not been rated at all. More than half of the workers had not been given a performance review and of those who had, just 43 received a “below fully successful” rating. 

IRS still suggested in the termination letters that the employees were fired for performance. 

The district judge that had found the firings to be unlawful said OPM had illegally directed agencies to terminate the staff, rather than the agencies making their own decisions. The impacted employees were “terminated through a lie,” the judge said, and the justifications they were initially provided were “a total sham.” 

The Supreme Court, however, found the Trump administration was likely to win its case on the merits and struck down the injunction. It did not suggest federal court was an inappropriate venue for the case, though the administration again made that argument on Tuesday. The plaintiffs should instead take their case to the Federal Labor Relations Authority, the Justice official said. 

A majority of the panel that heard the case, made up of Judge Morgan Christen, a President Obama appointee, and Judges Lawrence Vandyke and Daniel Bress, both President Trump appointees, appeared to favor the administration’s argument that the unions should take their case elsewhere. 

Vandyke and Bress both suggested employees should challenge their employing agency rather than OPM, with the former judge likening the situation to an Instagram influencer calling for a federal employee be fired, the agency firing the employee and the individual suing the influencer instead of the agency. The administration’s attorneys noted probationary employees are severely restricted in their appeal rights, but the case was brought by unions and advocacy groups and not any individual workers.

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Eric Katz: ekatz@govexec.com, Signal: erickatz.28

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