Judge extends reprieve for USAID employees in union lawsuit

The temporary reprieve for USAID’s direct employees who either had been or were intended to be placed on paid administrative leave has been extended for one week, through Feb. 21. Following a hearing Thursday, Judge Carl Nichols extended the temporary restraining order that required the Trump administration to reinstate about 2,000 employees who had been placed on leave and prevented it from placing an additional 2,200 on leave last week. The lawsuit is brought by the American Foreign Service Association and the American Federation of Government Employees, two unions representing USAID employees. Oxfam America joined the lawsuit as a plaintiff on Thursday before the hearing. Nichols also made one change in the wording of the order — saying that no USAID employees serving abroad shall be “involuntarily evacuated” from their host countries, rather than barring the government from evacuating any employees. Initially, the Trump administration had given the order to recall most USAID direct hires stationed overseas within 30 days. It then clarified that they could either return within 30 days and have their travel expenses covered or elect to stay but expenses would only be covered if they received a waiver. The judge’s initial order stopped any returns, but now those who want to leave can, even before the next court action. The extension was granted to give the judge time to rule on the request for a temporary injunction, which could require the government to pause all or some of these staffing actions until the entire case is complete. Nichols said he would issue that ruling next week. Nichols also asked the government to provide additional information, including what specific steps and systems the government would put in place for overseas employees who are placed on leave, and thus cut off from agency systems, to ensure their safety. He also wanted the government to clarify what benefits employees who choose to stay in their overseas posting while on administrative leave will receive. During the hearing, lawyer Eric Hamilton, representing the government, could not specify what systems would be in place but pointed to a declaration from Peter Marocco, the head of the Office of Foreign Assistance at the U.S. Department of State, that staff safety would be protected even if they were placed on leave. The judge responded by asking why the government doesn’t just put overseas staff on administrative leave, or provide them with access to systems to avoid security concerns. Hamilton said that it was within the president’s and the administration’s authority to determine if employees have access to foreign policy documents and information. Hamilton added that not being able to place employees on leave is harmful to the administration because it limits its ability to carry out the 90-day pause and review of foreign aid. When asked why, Hamilton said that there had been problems with insubordination, questionable contracts, and practices. “Surely not 4,000 people,” the judge said in reply, referring to the total number of USAID direct hires that the government is trying to put on leave, which is actually around 4,400. Many of the questions the judge had for the plaintiffs — the two unions representing USAID employees — were about whether the government’s actions would cause irreparable harm to USAID employees and whether other existing government mechanisms for labor or employment disputes could address that harm. The plaintiffs said those processes are insufficient and could take years to complete when staff are being harmed today, which makes the U.S. District Court the appropriate venue to challenge the issue. The government, however, argued that those processes are specifically designed for these types of government employee-employer disputes and that individuals would be able to pursue recourse for any harm through those avenues. The judge also sought to differentiate between the experiences and potential harms among employees placed on leave in Washington, D.C., versus those serving abroad, who could face security risks if they lose access to USAID systems as part of being placed on leave. He said those security risks to Americans abroad motivated his decision to grant a temporary restraining order. A declaration filed by Marcus Doe, one of the plaintiffs, an anonymous USAID foreign service officer assigned to the Democratic Republic of Congo in Kinshasa, provided an example of what is allegedly at stake, and why access to security systems, support, and payment systems is critical for USAID employees abroad. On Jan. 28, the U.S. embassy in DRC warned USAID employees of the risk of protests as a result of increased conflict in eastern Congo and advised them to shelter in place. Later that day, a USAID employee had to be extracted from his home with his family after protesters set fires outside his house and later looted their possessions. Also later that day, the embassy decided staff should evacuate but USAID funds could not be allocated for the evacuation. While staff applied for a waiver, it wasn’t approved until after the evacuation by boat, and then plane, had begun. When they finally arrived in Washington, D.C., they were given two nights at a hotel to figure out where they would live, where their kids would go to school, and other logistics. “This is a stressful endeavor under the best of circumstances, but for USAID families, we did not know whether we would ever receive the housing allowances and other support payments that would normally be owed to evacuated families, as we did not know how long our Agency would exist,” the declaration said. The plaintiffs argued that USAID staff face several security, financial, and other risks, which are exacerbated if they are cut off from communication. And with USAID’s Phoenix payment system not working, payments of utility bills for staff abroad are not being processed, which could lead to them losing power, phone service, and more, the plaintiffs argued. Karla Gilbride, the deputy director of the Public Citizen litigation group, the plaintiffs’ attorney, also argued that the manner in which the administration was dismantling the agency was creating chaos and uncertainty. The government argued that the plaintiffs were wrong that the administration was shutting down USAID. What is underway is a 90-day pause and review of programs, Hamilton said. In addition, the government argued that Secretary of State Marco Rubio’s message to Congress outlining his plans to explore changes to the agency would meet the requirements for congressional consultation included in recent budget laws. Gilbride pointed to mounting program terminations, the inability to pay for work that’s been allowed to resume under waivers because the payment system is down, the closure of the agency’s D.C. headquarters and missions around the world, as well as President Trump’s own words that USAID should be shut down as evidence that the agency is being dismantled and not just reviewed. “There has been a mismatch in the proceedings between words on paper and actions on the ground,” said Gilbride, adding that this mismatch and the lack of consistent, clear information is leading to increased fear and uncertainty for staff.