Some agencies are still firing probationers while others have recalled theirs, following court ruling

Updated March 3 at 4:40 p.m.

Some federal agencies are continuing to fire their recently hired or newly promoted staff despite a court ruling that deemed the justification for those firings unlawful, while others are responding to that decision by rehiring those they had already terminated. 

A federal judge last week said the Trump administration—through the Office of Personnel Managment—directing the mass firings of employees on their probationary periods was illegal, though the judge did not directly call for the terminations to cease or for agencies to recall those they had already let go. The ruling applied to only a handful of agencies whose employees were party to the case brought by the American Federation of Government Employees and other groups. 

On Friday and over the weekend, the departments of Commerce and Homeland Security moved forward with some firings of probationary employees. The Commerce terminations were focused on the U.S. Patent and Trademark Office, according to a source familiar with the actions, where 86 employees were let go. DHS’ firings were focused on headquarters staff after the agency previously terminated probationers at most of its sub-agencies, and at least gutted the Center for Prevention Programs and Partnerships. 

That division, known as CP3, works with state and local governments to enhance their defenses against targeted violence and terrorism. Employees there received termination notices late Friday and late Saturday nights, according to impacted workers who spoke with Government Executive. One individual briefed on the situation estimated one-third of the small office of a few dozen employees had been fired. 

While at Commerce USPTO moved forward with firings, at least one of its divisions hit the brakes on planned dismissals over the court’s ruling. The National Institute of Standards and Technology had planned to also fire probationary staff on Friday, according to a source familiar with internal decision making, but paused those actions in light of the judge’s decision. The Defense Department was scheduled to move forward with its termination of 5,400 employees on Friday, according to court filings and public statements from the Pentagon, but has at least temporarily paused those firings. 

After publication of this story, NIST on Monday opted to restart the firing process and dismissed 73 employees, according to a source familiar with the actions. Most of those staff were in the CHIPS for America office. 

Defense, along with the National Park Service, Bureau of Land Management, Veterans Affairs Department, Small Business Administration and Fish and Wildlife Service, were directly cited in U.S. District Judge William Alsup's ruling. Alsup initially included the National Science Foundation in his decision but issued a correction to remove it. 

Still, NSF has decided to re-hire the probationary employees it fired last month. About half of the roughly 170 employees it fired are considered experts who only work part time for the agency. Those employees were not rehired. 

NSF Director Sethuraman Panchanathan “ordered the immediate reinstatement of terminated probationers with backpay and no break in service based on updated guidance from OPM and the Federal Courts,” agency spokesman Mike England said. “Every NSF employee makes important contributions to the NSF mission and the national science, engineering, and technology enterprise everyday.” 

He added that NSF “welcomes the return” of its probationers who will help ensure the United States “remains the global leader in scientific discovery and innovation.” One NSF employee impacted by the firings told Government Executive he had not yet heard from the agency Monday morning, but was "cautiously optimistic" about the decision. 

Specifically, Alsup ordered OPM to revoke the memorandum it released shortly after Trump’s inauguration requiring agencies to gather names of probationary staff and justify each role, as well as a written directive from Feb. 13 instructing agencies to begin firing those workers and to complete that task by Feb. 17.