OPM Director Scott Kupor has a blog. It’s called “Secrets of OPM,” and Kupor has posted there regularly since he was confirmed in July. (The confirmation vote was 49-46, with Lisa Murkowski joining Senate democrats to oppose the nomination).
While promising a candid look at “all things OPM and the federal workforce,” the blog sidesteps some of the most disturbing aspects of the administration’s policies and actions towards federal government employees. To pick some egregious examples, there is no post addressing Elon Musk’s hyperbolic attacks on USAID employees or Laura Loomer’s apparent influence on personnel decisions. On the other hand, Kupor defended the deferred resignation program and commented briefly on OPM’s decision to end the “five things” emails mandated by Musk. Most recently, Kupor, a former tech executive and venture capitalist, published a post encouraging federal employees to experiment with AI.
I want to focus here on Kupor’s post on the mass terminations of probationary employees. Kupor addressed the issue in a piece about legal decisions that, according to Kupor, support the Trump administration’s efforts to “improve the efficiency and accountability of the federal workforce.”
Kupor doesn’t explain how the mass termination of probationary employees enhanced “efficiency and accountability.” The terminations were indiscriminate, rushed, and haphazard. Agencies sent template letters suggesting that the terminations were based on performance or conduct; we now know that was false. OPM gave the agencies only a day or two to implement the terminations, so there was no time for a genuine assessment of the employees’ work. Many of the affected employees were well-established professionals who had recently joined government from the private sector. Others were longtime federal employees who had switched jobs.
The administration’s primary defense of the terminations has been that the government was allowed to do it because of the employees’ probationary status—not that it was good policy. Kupor largely follows that approach.
Specifically, Kupor cites a recent legal decision that he portrays as finding that the administration acted lawfully when it terminated probationary employees. But Kupor’s discussion of that case is misleading.
First, Kupor says that the case was “resolved by… the Merit Systems Protection Board (MSPB).” That is false. An initial decision was issued by an administrative judge at the MSPB, one of roughly 60 such judges around the country. It is not a final decision and does not necessarily reflect the views of other administrative judges or the MSPB Board. Even once the MSPB does make a final decision, that decision will be subject to review in federal court.
Second, Kupor portrays the case as making a general pronouncement about the legality of mass terminations of probationary employees. That is wrong too. The case considers the termination of 13 immigration judges by the Department of Justice. It does not address the mass terminations at other agencies, such as the termination of 3200 probationary employees at HHS or 1700 employees at the Department of Interior.
To be clear, neither the MSPB nor any administrative judge has issued a decision on the legality of these larger mass terminations. Judges have found some appeals to be moot because the employees were already made whole after federal court rulings against the administration. As to the other agencies, proceedings are ongoing before MSPB administrative judges. These agencies include HHS, Department of Interior, Department of Housing and Urban Development, Department of Commerce, and others.
Meanwhile, as noted above, several federal judges have found the probationary employee terminations to be unlawful. Just last week, a judge issued a summary judgment decision and final judgment in favor of AFGE and other plaintiffs on their challenges to the terminations.
-Danny Rosenthal, attorney at James & Hoffman.