By Scott Kupor, Director, U.S. Office of Personnel Management

August 15, 2025

Ok, I’ll admit it, I’m a legal nerd, so I might be the only one who finds this blog interesting. But bear with me, because as you’ll hopefully see shortly, when the law intersects with important policy issues, things get really exciting!

A central tenet of President Trump’s administration is to improve the efficiency and accountability of the federal workforce and to ensure we can attract and retain exceptional civil servants. For too long federal spend has traveled in only one direction – more dollars and more headcount – without a focus on whether we are doing the most important things on behalf of the American people at the most efficient cost. In addition, the government has been hampered in its ability to hire based on merit.

That all stops with President Trump. And a trio of recent legal decisions clears the way.   

Luevano v. Ezell

In 1981, Angel Luevano argued the government’s use of the Professional and Administrative Careers Exam (PACE) used to evaluate job applicants was illegal because Black and Hispanic applicants scored disproportionately lower on the test than did White applicants. PACE had been validated as correlating with key job skills, supporting a merit-based civil service. But the “disparate impact” on minority applicants was deemed unlawful and the government was prevented from using such assessment tests – for 44 years!

That is, until two weeks ago, when Luevano himself and a group of liberal advocacy groups voluntarily agreed with the government that the order should be lifted. This decision enables the government to operate in a common-sense manner – by testing job candidates for the skills they claim to possess versus the historical practice of relying on a candidate’s own self-assessment. Step one in the path toward true merit-based hiring.

AFGE v. Trump

Labor unions represent more than half of federal employees. It has long been established that presidents have broad discretion on a variety of national security issues, including the ability to exempt federal agencies from collective bargaining if those agencies are engaged in such issues. President Trump did just that earlier this year – which has been the practice of most recent administrations (other than Biden).

The labor unions tried to block this by arguing President Trump was displaying personal animus for the unions and thus his executive order violated the First Amendment. Last week the 9^th Circuit Court of Appeals – certainly not known for its conservative values – rejected the unions’ claims and permitted the exempted federal agencies to comply with the executive order. You may have seen this week that the VA, for example, moved forward with terminating its collective bargaining agreements with its unions.     

Why does this all matter? Because it provides a first step toward accountability in the federal workforce. Under the prior regime of broad collective bargaining agreements, any type of employment-related changes – restructurings, worksite locations, return-to-office, etc. – were held hostage to the demands of the labor unions, limiting the ability of managers to do what they determined to be in the best interest of the taxpayers. Now, those closest to the organization who understand how best to deliver services to the American people are once again in charge.

Acosta v. DOJ and OPM

The final leg of this three-legged stool is a case that was resolved by an internal government legal authority – the Merit Services Protection Board (MSPB). When a new employee is hired in the government, they are typically on “probationary” status for their first year; in essence, this means the individual can be removed from their job without the full legal and procedural protections that accrue to more tenured employees. For those of you in the private sector, “probationary” employees are the closest thing the government has to “at-will” employees.

As part of the cost reductions implemented by President Trump, a number of probationary employees lost their jobs. Those impacted brought a novel claim to the MSPB, arguing the termination of these employees was really a reduction-in-force (RIF) in disguise (or “constructive RIF” in legal jargon). The employees sought to be reinstated, alleging if it was in fact a constructive RIF, the more stringent RIF rules (which require significantly greater notice and procedural protections) should apply.

The MSPB said “no.” Probationary employees are in fact – probationary! The government was not eliminating a particular job function – which is often the case in a RIF – but rather terminating certain probationary employees, a class which plainly has lesser legal protections.

Taken as a whole, these three cases clear many of the hurdles that have tried to thwart the President’s ability to carry out his employee accountability and operational efficiency goals. There is much work left to do, but we are now ready at the starting line.