{UAH} COURT ALLOWS CIA TO FIRE EMPLOYEES WHO WORKED ON DEI

Court allows CIA to fire employees who worked on DEI

The judge lifted a prior short-term block he had placed on the firings of 19 intelligence community workers.

CIA Director John Ratcliffe listens during a cabinet meeting at the White House on Feb. 26. | Al Drago/Bloomberg

By Josh Gerstein

A federal judge has turned down a bid to block the Trump administration from firing intelligence officers who worked in DEI programs, but he prodded the spy agencies involved to try to find new jobs in the intelligence community for those being ousted.

At a hearing Thursday in federal court in Alexandria, Virginia, U.S. District Judge Anthony Trenga said the laws and court precedents relating to intelligence agency employees give them little recourse in the courts if top officials decide that firing them is in the “national interest,” even if they’ve worked for the government for a decade or more.

“In effect, they are at-will employees,” said Trenga, an appointee of President George W. Bush.

The employees involved in the case are 19 intelligence-agency workers whom the administration identified as working on “diversity, equity and inclusion.” President Donald Trump has sought to end DEI initiatives throughout the federal government.

In their lawsuit contesting their firings, the workers say they had been temporarily assigned by their agencies to implement civil rights laws within the intelligence community. Their duties included advancing the hiring and promotion of underrepresented minorities. They say Congress appropriated money for the specific tasks they were carrying out.

The workers allege that the firings violate two federal laws as well as the First and Fifth Amendments.

But Trenga said CIA Director John Ratcliffe has “uncabined discretion” to use the “national interest” provision to strip employees of the ability to use any of the normal mechanisms to contest a firing.

“The regulations clearly state that there is no property interest in the employment they have,” the judge said. “The ability of the director to terminate without respect to any other procedures is embedded in those regulations.”

At an earlier stage in the case, Trenga briefly halted the firings while he heard further arguments. But on Thursday, he denied the workers’ request for a temporary restaining order or preliminary injunction that would have extended the earlier block.

The judge did extend until Monday the deadline for the 17 CIA employees and two Office of Director of National Intelligence employees in the case to accept the deferred resignation program the Trump administration offered to most executive branch employees.

The judge also made clear that he found it bizarre and unwise that the intelligence agencies would cashier long-serving employees who just happened to be in DEI-related roles when Trump took office.

“If fairness and good judgment were the guiding principle, it would be an easy case,” Trenga said.

During legal arguments that preceded the judge’s ruling, Assistant U.S. Attorney Dennis Barghaan contended that the national interest exemption is exceedingly broad and is not limited to national security concerns. Barghaan, a career lawyer who heads the civil division in the U.S. Attorney’s Office in Alexandria, also sought to put some distance between himself and the decision to ax the longtime workers.

“It’s not my place here to defend the merits of the decision or the righteousness of it,” Barghaan said. “I feel for the plaintiffs.”

Barghaan’s expression of sympathy was not well-received by some of the intellgence-agency employees who filed the suit and were present at the hearing. Two of them hectored him as he left the courtroom.

“You should be ashamed. You should really be ashamed of yourself,” one man called out at Barghaan as he waited for an elevator. “That was really disgusting.”

The government attorney did not respond.

Trenga did not rule out future relief for the intelligence-agency workers. He suggested they might have valid legal claims if they aren’t considered for other roles or if the administration maligns them by publicly linking their dismissals to Trump’s repeated denunciations of DEI programs as corrupt.

“The court is certainly available for future consideration of this case as the facts unfold over the next several months,” the judge said.

Trenga also said he thinks Ratcliffe could comply with the administration’s anti-DEI policies and still allow the employees to transfer to other roles. And he emphasized CIA’s regulations allow for an appeal, although he acknowledged that the appeal would likely go to the same officials who carried out the firings.

After the court session, the workers’ lawyer, Kevin Carroll, told reporters that he hopes the CIA will reconsider and allow the workers to move into other positions in government. “We respect the court’s decision,” Carroll said. “I would certainly hope, given the judge’s remarks from the bench, that Director Ratcliffe would consider allowing the plaintiffs to reapply for other jobs.”

Carroll told plaintiffs after the session that he will consider an appeal, but that appeals courts rarely overturn a lower court’s decision to deny an injunction at this stage of a case.

The plaintiffs were identified by pseudonyms in public court files. In recent submissions, they variously described themselves as female, gay, Asian American, atheist, or over 40 years of age. Carroll said many of the workers are considering their legal options to pursue discrimination claims in connection with their firing.

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