Here's the just filed motion for summary judgment (of 36 pages) in favor of the fired employees, in the probationaries' case in front of the able USDC Judge Alsup, in San Francisco -- and a bit of it:
. . .OPM promulgated at least three government-wide “rules” which, pursuant to 5 U.S.C. §§1105 and 1103(b)(1), could only be issued by means of notice-and-comment rulemaking. First, OPM directed all department and agency heads to prepare and submit a report listing all employees on probationary periods; to “promptly determine whether those employees should be retained at the agency”; and to terminate all but their “mission-critical” probationers by February 17. AR335-37, AR375. Second, OPM purported to redefine -- on a government-wide basis -- employee “fitness” and “qualifications” as those terms are used in 5 C.F.R. §315.803, and employee “performance” as a ground for termination as used in 5 C.F.R. §315.804, by instructing all agencies that “only the highest-performing probationers in mission critical areas” were to be considered fit for continued employment, AR377-78, and that “[w]hile agencies must identify performance or conduct deficiencies in the notice terminating a probationer, such performance or conduct deficiencies do not have to be identified in a previous performance evaluation,” AR369. Third, OPM created a novel process by which agencies could secure exemptions from OPM’s equally novel mass termination program. . . .
Each of OPM’s new government-wide policies were “statements of general. . . applicability and practical effect.” 5 U.S.C. §551(4). Such “change[s] in existing law or policy,” Alcaraz v. Block, 746 F.2d 593, 613 (9th Cir. 1984), were therefore “clearly. . . ‘rule[s]’” that were subject to notice-and-comment rulemaking requirements. Newman, 768 F. Supp. at 11. This is particularly clear with respect to OPM’s wholesale revisions of 5 C.F.R. §§315.803 and 315.804, which were themselves rules that were adopted pursuant to the APA. See Doe v. Trump, 288 F.Supp.3d 1045, 1075 (W.D. Wash. 2017) (“Where the original rule was adopted after a notice and comment period, courts have generally found the decision to alter those rules to be substantive, and therefore subject to APA rulemaking procedures as well.”).
It cannot reasonably be disputed that OPM did not comply with the APA’s notice-andcomment requirements. OPM therefore adopted its new government-wide rules “without observance of procedure required by law,” and those rules are invalid. . . .
Me? I like the probationaries' chances here, to win out without having to go to trial. Onward -- resolutely.
नमस्ते
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