Sam Halpert, NALP Director of Public Service Initiatives
Photo: Harris and Ewing Collection, Library of Congress
Hi Interested Public,
Another breathless week. Federal employees received an email last weekend to which they either did or did not need to respond, which either would or would not result in their termination; they may receive another this coming weekend. Courts continue to issue orders against sweeping changes to the federal bureaucracy. The Merit Systems Protection Board and the federal judiciary have begun to weigh in on the administration’s tactic of terminating probationary employees for “performance” issues without naming what those issues might be. Trans service-members are set to be ejected from the US military, universities are beginning to scale back their future spending plans in the face of federal funding uncertainty, and income-driven repayment plans are no longer available on the Department of Education’s website.
“As professors of legal studies, we’ve taken a close look at the “Dear Colleague” letter. Here’s how the letter infringes on free speech, misunderstands the law and undermines education.”
“But the judge did not order the reinstatement of any fired workers, saying he was powerless to do so.
…The San Francisco-based judge, however, did order OPM to rescind any directives it has issued requiring the mass terminations. OPM also must inform several agencies that it has no power to dictate firings across the federal bureaucracy.
…Alsup, an appointee of President Bill Clinton, concluded that OPM advised the agencies to falsely claim the employees were fired for “performance” issues.
“That’s just not right in our country, is it, that we would run our agencies with lies like that and stain somebody’s record for the rest of their life?” Alsup said as he issued his ruling from the bench after a court hearing in a lawsuit brought by labor unions and organizations whose members are served by agencies hobbled by the mass terminations. “Who’s going to want to work in a government that would do that?”” [emphasis added]
“In response to the latest ruling, last Friday the department took down the online applications for IDR plans and for Direct loan consolidations. It appeared for several days that borrowers could still apply for these plans via a paper application, available for download through the Department of Education’s forms library. But then this week, the department removed the paper IDR application from the forms library – leaving borrowers with no means of applying for these plans. This could have profound implications for millions of student loan borrowers.”
“Each Phase 1 ARRP should identify…3. All agency components and employees performing functions not mandated by statute or regulation who are not typically designated as essential during a lapse in appropriations”
[Ed. Note: RIFs based on these Agency RIF and Reorganization Plans would essentially place the federal workforce in a permanent state of shutdown. Cf. OPM, “Guidance for Shutdown Furloughs” at 1.]
Conflicts Over Diversity, Equity, Inclusion, and Accessibility
“Right-wing activist Christopher Rufo had first reported on the matter on X earlier on Tuesday, noting that the DNI sent out a memo ordering all intelligence agencies to identify the employees involved in these chats…Gabbard responded to Rufo’s tweet saying the memo has been sent and added: “We know who they are. Action is underway.””
“It’s certainly true that the wealthiest schools, starved of federal funding, would find a way to continue paying for science. But most schools do not possess the kind of resources that Harvard, Yale, and Johns Hopkins do, nor can the relative handful of extremely wealthy institutions be expected to fund scientific research for the entire country. The vast majority of NIH money goes to institutions that, without federal support, would likely be forced to shut down most or all of their medical research.”
“It is important to note that Public Service Loan Forgiveness (PSLF) is established separately in statute and is not threatened by legal challenges to the SAVE plan.”
“House Republicans on Tuesday successfully passed a budget resolution that paves the way for trillions of dollars in tax cuts, which lawmakers hope to offset with significant reductions in federal spending. The move allows lawmakers to proceed with plans to draft legislation that would cut up to $330 billion in education-related spending, in part by slashing federal student loan forgiveness and repayment plan programs.”
“We don’t know the ultimate outcome in the case yet, but it did give the Trump administration what it wanted: not to issue the payments on Wednesday. Given what has happened here, it is a particularly concerning sign about Roberts’s willingness to support the independence of federal courts…The chief justice of the United States allowed an ongoing and increasingly bad-faith effort to distort and sidestep a district court’s temporary restraining order to work…While the Supreme Court might ultimately reject DOJ’s argument, allowing Ali to proceed with enforcing the TRO, the Trump administration’s effort to avoid court order compliance worked the first time in the new administration when Roberts was the last person standing between the administration and a deadline.”
“AliKhan had previously issued a temporary restraining order that prevented the Trump administration from freezing federal assistance while she considered the nonprofits' request for injunctive relief.”
“Acting Commissioner Lee Dudek called the closures of the Office of Transformation on Monday and the Office of Civil Rights and Equal Opportunity on Tuesday part of an effort to eliminate wasteful and duplicative offices…A spokesman for the Social Security Administration said about 50 people in the Office of Transformation and about 140 people in the Office of Civil Rights and Equal Opportunity have been placed on administrative leave.”
“Federal workers are slated to receive a second email Saturday asking them for a bullet-point description of what they did in the past week — only this time, a new strategy from the Trump administration means they might have to respond, according to three people familiar with the matter, who spoke on the condition of anonymity to discuss private talks.”
Sam Halpert, NALP Director of Public Service Initiatives
Photo: Harris and Ewing Collection, Library of Congress
Hi Interested Public,
It’s been a cold, cold week. Aside from my editor’s choices below, I’d like to call everyone’s attention to the “Dear Colleague” letter issued by the Department of Education last weekend (see “Changes at the Department of Education”). Despite multiple court orders directing the Trump Administration to reverse its “funding pause” policies, continued interruptions in federal funding have begun to affect immigration legal services and hiring in higher education. Meanwhile, federal reductions in force expanded into several additional agencies over the course of the week.
“We are law professors who study and teach antidiscrimination law, education law, employment law, constitutional law, and civil rights…This memo explains why common DEI initiatives remain legally defensible notwithstanding President Trump’s January 21, 2025 Executive Order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “J21 EO”) and related agency communications like the Department of Education’s February 14 Dear Colleague Letter (the “DCL”).
…We urge university leaders to respond confidently, with both law and moral principle on your side, and not to sacrifice essential and legally defensible DEI initiatives that help universities fulfill their most basic mission to pursue truth and knowledge for the common good.”
“Phase 1 focuses on rescissions of Biden administration executive orders related to DEI and shutting down targeted agencies. Phase 2 consists of placing on leave employees in non-DEI roles — who DOGE determines are somehow tied to DEI — as well as other employees working at offices whose existence is mandated by law. Phase 3 is slated to include large-scale firings, the documents show. The nation is now in DOGE’s Phase 2, which is scheduled to last until Wednesday [Feb 19], according to the documents.
…The final steps listed in the documents call for large-scale firings. DOGE intends for the Trump administration to terminate all DEI-linked employees via a Reduction In Force, or RIF, the government form of layoffs. Positions to be cut include employees in non-DEI positions and people working in offices required by law. The documents note the possibility of legal challenges and state: ‘We are exploring options for this.’”
“The board is planning to fight Trump’s order, three of those people told The Washington Post. In an emergency meeting Thursday, the board retained outside counsel and gave instructions to sue the White House if the president were to remove members of the board or attempt to alter the agency’s independent status…Trump’s order to place the Commerce Department in charge of the Postal Service would probably violate federal law, according to postal experts.”
Conflicts Over Diversity, Equity, Inclusion, and Accessibility
“The Trump administration issued an order on 27 January freezing payment on all federal grants and loans, but lawsuits challenging its legality were filed soon after, placing the order on hold. The fact that payments still aren’t going out because Trump’s team has halted grant-review meetings is exploiting a “loophole” in the process, says Aaron Hoskins, an RNA biochemist at the University of Wisconsin-Madison who has had to reconsider hiring graduate students because of a frozen grant application. “It’s really quite nefarious.”
Some legal scholars say this ‘backdoor’ approach to freezing funding is illegal.”
“Even some of the wealthiest universities in the nation have already frozen hiring, paused graduate admissions and taken other actions as officials estimate the potential damage if the National Institutes of Health plan to cap reimbursements for indirect research costs moves ahead.”
“Although SFFA addressed admissions decisions, the Supreme Court’s holding applies more broadly. At its core, the test is simple: If an educational institution treats a person of one race differently than it treats another person because of that person’s race, the educational institution violates the law. Federal law thus prohibits covered entities from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life. Put simply, educational institutions may neither separate or segregate students based on race, nor distribute benefits or burdens based on race.” [emphasis added]
“Some top US law schools have dropped mentions of diversity from their websites as academic centers face a compliance deadline to ensure continued federal funding…The changes come as schools, businesses and nonprofits look for ways to adapt to heightened scrutiny of their diversity, equity and inclusion practices. Law schools are required to adhere to the American Bar Association’s DEI standards by its accrediting body. Schools are facing a Feb. 28 deadline to ensure their DEI policies, initiatives and programs do not violate federal law or risk their federal funding, according to a Feb. 14 letter from Craig Trainor, the acting assistant secretary for Civil Rights at the Education Department.”
“‘I think that the creation of chaos certainly seems intentional,’ Kayleigh Baker, an attorney and senior consultant with TNG Consulting, told Law.com. ‘That makes it very hard for everyone to catch their breath and figure out the actual implications of any one set of materials.’”
“The Interior Department sent a stop-work order to the nonprofit Acacia Center for Justice on Tuesday, cutting off funding for “all activities” under Acacia’s federal contract to provide legal services for unaccompanied migrants younger than 18, according to the text of the letter obtained by NBC News…It is unclear why the most recent stop-work order, the second the Acacia Center for Justice has received in recent weeks, was issued. In January, the Justice Department issued a stop-work order to four legal access and education programs for immigrants run by the Acacia Center, but the Justice Department lifted it after a judge issued a temporary restraining order stemming from a lawsuit against the Trump administration.”
“A federal judge on Thursday ordered Trump administration officials to comply with his earlier order that they lift a freeze of nearly all foreign aid, though he stopped short of holding them in contempt of court.”
“The fight illustrates how efforts by DOGE and OMB to slash the federal bureaucracy are poised to create conflicts with industries and interests that Republican lawmakers hold dear. The confrontation is also the latest test of Capitol Hill’s power in the second Trump era, and a new front for lawmakers who have a direct say over federal spending.
…It’s an awkward position for GOP lawmakers who have otherwise voiced support for DOGE.
…But when it comes to government waste, Republican lawmakers are beginning to see things differently as constituents in red states speak out. Many are waiting to see if the courts strike down some of DOGE and OMB’s actions, according to a senior Republican Hill aide granted anonymity to discuss party dynamics.
Some Republicans are “chafing about the basis of [the] executive doing it rather than it being done by Congress,” said the aide.”
“Late last week, just as Presidents’ Day weekend was starting, Donald Trump and Elon Musk purged hundreds of Federal Aviation Administration employees — including multiple lawyers whose job was to help prevent pilots with drug and alcohol problems from getting in the cockpit, knowledgeable sources tell Rolling Stone.
According to a person familiar with the matter and another source briefed on it, the mass job cuts at the FAA hit multiple legal offices at the agency, which is part of the Department of Transportation. Different kinds of lawyers were abruptly let go, blindsiding numerous staffers and officials who could not see much rhyme or reason to these dismissals.”
“One SBA employee who received a termination notice for poor performance said the letter arrived despite not yet working a single day for the agency. Others said they had only received outstanding grades in their performance reviews.”
“On Reddit, one poster encouraged federal employees to think with a view to the public record. They should write letters, the poster urged, on behalf of the “trashed colleagues”. It was imperative to put on paper that these colleagues “did indeed have good performance despite the firing”.
The poster offered a list of reasons to write these letters, among them that references help workers get new jobs. But the biggest reason to praise colleagues who have been fired under false pretenses is that, as the poster wrote, “it’s the truth.”
“previous administrations have allowed so-called “independent regulatory agencies” to operate with minimal Presidential supervision…The Director of OMB shall establish performance standards and management objectives for independent agency heads, as appropriate and consistent with applicable law, and report periodically to the President on their performance and efficiency in attaining such standards and objectives.”
“Earlier this month, however, these permanent workers were suddenly told by NSF that their one-year probationary period should have been two years and they were no longer safe from being terminated. The Trump administration has ordered federal agencies to fire nearly all probationary employees who had not yet gained permanent status, thereby receiving civil service protections. But NSF workers who believed they were safe suddenly found themselves without jobs today.” [emphasis added]
“‘EOIR has determined that retaining you is not in the best interest of the Agency,’ the letter read.
Doyle, who grew up in Chelmsford, is one of more than 20 judges across the nation fired by the Trump administration in recent weeks, 13 of whom had yet to be sworn in and who were dismissed last Friday, according to Matthew Biggs, president of the International Federation of Professional & Technical Engineers, a union representing federal workers, including some immigration judges.”
Sam Halpert, NALP Director of Public Service Initiatives
Photo: Harris and Ewing Collection, Library of Congress
Hi Interested Public,
The news continues to pile up with increasing bite. Last night was hard. I don’t know what this evening and this weekend will have in store, but hopefully we’ll have a chance to unpack it together next week. For the time being, here are the stories worth sharing. Our overall framework for understanding this moment has grown a bit from last week. In particular, I’ve introduced a section on “Academic Funding Restrictions” which may surprise some of you. I hope the pull quote I’ve provided will illustrate why it seems worthwhile to pay careful attention to dramatic changes in the funding ecosystem for university staff on the STEM side of things as well.
“Elements of the judicial branch, including public defender offices, have been caught up in the Trump administration’s headlong rush to terminate thousands of leases of government office space, TPM has learned. Unlike the vast majority of federal workers whose office leases are under review for termination, public defenders are not executive branch employees. They work for the judicial branch…Some federal public defenders’ offices received a notice last week from the General Services Administration titled “Right-sizing the Federal Inventory.” The notice, obtained by TPM, was issued by acting GSA Administrator Stephen Ehikian and asked recipients to indicate whether terminating the lease on a given office will leave their mission “irreparably compromised,” and whether the location “directly serves the public.””
“The Shapiro administration on Thursday [2/13] sued the federal government over its implementation of President Donald Trump’s executive orders, challenging a freeze of federal funding and saying state agencies can’t access $1.2 billion and face roadblocks on $900 million more.”
“What [Dep. Asst. Comm. for Federal Disbursement Services, BFS] Vona Robinson is saying is that the Trump administration has already reached beyond stopping payments from agencies they do not like to stopping specific appropriations they do not like regardless of the agency doing the spending…What the officials at the agency are “supposed to be” doing according to the Trump administration is reviewing them for “violations” of the president’s executive orders which unconstitutionally order sweeping spending freezes. Thus, this process is operationally elevating executive orders above all other laws.” [Ed. Note: Executive Orders are not laws.]
Conflicts Over Diversity, Equity, Inclusion, and Accessibility
“[Q:] What kind of financial trade offs would administrators have to consider under this policy?
[A:] There are a lot of numbers floating around from different institutions as to how much they would be cut. But a lot of the larger ones would have to find $150 [million] or even $200 million every year to replace the money that they're getting from the federal government. The choices that they have are all pretty bleak. They'd have to cut other programs in order to fill that hole in, which could affect any discipline or any function of the university. Or they would have to cut corners in the way they administer the research, which could create all kinds of problems with accounting or noncompliance with the government's regulations.” [emphasis added]
“Some experts have speculated that the Treasury Department would be the next most logical agency to administer student debt. However, it’s uncertain whether Treasury would be as focused on students as the Education Department, said former U.S. Under Secretary of Education James Kvaal.
“People take out student loans at a very young age, and Congress created all these benefits that are available on student loans that aren’t available on other types of credit,” Kvaal said. “There’s a question if the Treasury would have the same ethic of prioritizing students.”
Instead, “Would they [the Treasury] prioritize loan collection?” Kvaal asked.”
“A new chatbot would answer questions from student borrowers…But transitioning into using generative A.I. for student aid help, as a replacement for some or all human call center workers, is likely to raise questions around privacy, accuracy and equal access to devices, according to technology experts.”
“[T]he internet is buzzing with speculation as TikTokers claim that student loans could be forgiven following allegations that Elon Musk's Department of Government Efficiency (DOGE) illegally accessed private student data…"Let me be clear: there is no legal pathway right now for loan forgiveness due to a FERPA violation," said Andrew Miltenberg, a legal expert specializing in education law.” [emphasis added]
“According to an Energy Department official, the Office of Personnel Management (OPM) had suggested the agency use a template that cited "performance reasons" as the cause of the firings. The official said the Energy Department letter had removed that phrasing because many of the employees had performed well during their probationary period. The Energy Department's press office did not immediately respond to a request for comment.”
“For some of these students, the fact that these jobs were pulled may make the difference of whether they ever become a practicing attorney or not,” said Nikia Gray, NALP’s executive director. “This is happening at a really critical juncture in their career development.”
“President Trump on Tuesday signed an executive order that will require federal agencies to severely curtail hiring once the current freeze is lifted and develop new plans to implement widespread layoffs across government. The order will place Elon Musk’s Department of Government Efficiency at the center of the efforts, reinforcing a demand Trump issued on his first day in office. The renewed effort for cuts is the latest salvo in the Trump administration’s battle to significantly shrink the federal workforce and diminish government capacity. ”
“Goggin is among roughly 75,000 federal employees who agreed to resign, according to OPM. But she is also one of an unknown number of people who have since learned they can't take the deal, because their positions are exempt.”
Sam Halpert, NALP Director of Public Service Initiatives
Photo: Harris and Ewing Collection, Library of Congress
Hi Everyone,
The news continues to pile up. I’ve pulled back from as-it-happens updates on NALP Connect to try and provide more of a week-end synthesis. Let me know how that works for you. The Public Service Section had a useful “huddle” last Monday where we sketched out a helpful framework for understanding the dramatic changes burning across the federal administrative state. Since we talked that framework through (on Monday), I need to add an additional prong to the “2025 Federal Reductions in Force” list, based on a new OPM memo regarding “performance management data” (see below). (For background on each of these categories, please consult the last two editions of the Digest.)
“The General Services Administration (GSA) reportedly sent out notice on Tuesday that it plans to sell half of the federal property it manages—a move that appears to contradict Donald Trump's and Elon Musk's plans to get federal employees to return to in-person work in the office.”
“President Donald Trump is reportedly finalizing an Executive Order that would attempt to dismantle the Department of Education, which would fulfill a campaign promise as he seeks to shrink the size of the federal government. As Trump tests the limits of his presidential authority, experts say the abolishment of the agency would be difficult, though not impossible. ”
“Pursuant to the President’s direction…OPM is developing new performance metrics for evaluating the federal workforce…no later than Friday, March 7, 2025, all agencies should submit data regarding their performance management plans and policies—including those contained in collective bargaining agreements—and identify any barriers to ensuring that 1) agency performance plans make meaningful distinctions based on relative employee performance and 2) the agency has the ability to swiftly terminate poor performing employees who cannot or will not improve.”
“an email, which has been viewed by CBS News, warn[ed] they could be immediately fired because of their probationary status as an employee with less than a year in their current role.”
“the move seems to be focused on making it easier for the government to install outsiders — potentially from the tech industry or those associated with Elon Musk — into the CIO role, similar to the ongoing and highly controversial activities led by the Department of Government Efficiency.”
Administrative Leave for Diversity, Equity, Inclusion, Accessibility, and Environmental Justice Employees
“[Q:] One thing that really has struck me about the new administration’s tactics so far is this extremely aggressive use of paid administrative leave. Career officials who’ve resisted DOGE’s demands have been quickly put on administrative leave. So were government officials working on DEI. Nearly all of the staff of USAID, the US Agency for International Development, has met that fate.
[A:] This is very strange and likely illegal. Federal law limits administrative leave to 10 workdays per year. So they will be exhausting the cap very quickly for many of these people. Normal administrations use it the way normal businesses use it, as a patch for a variety of problems….This is making strategic use of it on a vastly grander scale and there’s simply no legal authority for that.”
“As of 11:59 p.m. ET Friday, “all USAID direct hire personnel will be placed on administrative leave globally, with the exception of designated personnel responsible for mission-critical functions, core leadership and specially designated programs,” said a statement posted on the USAID website, which is back online after going dark last week.”
Get a weekly summary of news items that affect the public service legal community, with an emphasis on funding, job market, law school initiatives, and access-to-justice developments.
