A federal appeals court ruled Thursday that 19 intelligence community employees fired because they were doing diversity, equity and inclusion jobs must be given a chance to apply for other posts.
The 4th U.S. Circuit Court of Appeals said the directors of the CIA and national intelligence didn’t follow their own rules when they fired the 19 career officers.
Under those rules, the officers must be given a chance to fight their firings, and some can request reassignments rather than ouster, the court ruled in a 2-1 decision upholding a district court decision.
“As long as the employee subject to termination chooses to pursue reassignment, the Agencies must attempt to reassign her,” wrote Judge Nicole Berner, a Biden appointee. She was joined by Judge Stephanie Thacker, an Obama pick.
They concluded that the fired employees had a property interest in their jobs, thus had standing to sue.
The judges also said that while the law grants broad firing powers in the intelligence world, the written rules must still be followed.
Judge Paul Niemeyer, a George H.W. Bush appointee, dissented, saying the law gives agency directors “unfettered discretion” outside of the usual termination procedures.
That, he said, not only undercut the property interest argument that gave the employees standing to sue, but also weakened the conclusion that they had appeal and reassignment rights that were being trampled.
Judge Niemeyer encouraged the government to appeal to the Supreme Court.
“The preliminary injunction entered in this case is unlawful and should have been promptly vacated. Now, unfortunately, that can only be done by the Supreme Court, which I can hope will consider this wrongful intrusion, which has far-reaching and unfortunate precedential effects,” he wrote.
The high court just last month issued two rulings on presidential firing powers.
In one, they found that the president has absolute power to dismiss employees he believes stand in the way of his policy goals.
In the other, though, the court said the president was constrained in his ability to dismiss a member of the Federal Reserve Board for good cause. The administration must allow an employee in that situation to challenge the dismissal.
The intelligence community case arose after President Trump, upon retaking office last year, ordered his administration to weed out DEI policies and personnel from the federal bureaucracy.
Mr. Trump, in an executive order, called DEI “illegal and immoral.”
The 19 intelligence community employees were first put on leave, then told they would be part of a reduction in force that eliminated their positions.
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