Post by Alan Oberlin, Employment Lawyer

A federal appeals court on Thursday dealt Trump a fresh blow in his crusade against DEI. The 4th Circuit Court of Appeals upheld a fed court order blocking the Trump admin from firing dozens of CIA staffers tasked with working on DEI projects, court records show. Prior failure to follow the Termination Regulation... does not absolve the Agencies of their duty to it going forward, wrote Judge Nicole Berner in the majority statement. The Agencies may not ignore their own procedures and then use such noncompliance as an excuse to evade future obligations. At issue are 2 EOs Trump issued during the first days of his 2nd administration. The 1st directed fed agency heads to terminate all DEI offices and positions, which Trump criticized as illegal and immoral. The second aimed at eliminating DEI programs across the fed govt. Dozens of intel officers subsequently fired then challenged Trump in a Virginia federal court, arguing he had violated their 5th Amendment right to due process. Federal Judge Anthony Trenga initially denied their request to block the CIA and the Office of the Director of National Intel firings, but a month later agreed the employees should be placed on admin leave as they challenged the terminations. The 3-judge panel ruled Thursday to uphold that decision, with 2 affirming and 1 dissenting. Dissenter Judge Paul V. Niemeyer, an appointee of former President George H. W. Bush, argued fed agencies maintain the right to terminate whomever they choose. The district court’s and the majority’s holdings, I conclude, fail with double F’s, he wrote. The unfettered discretion that Congress gave the Dir's to terminate the employment of agency employees precludes the employees from having any entitlement to their employment. Berner, in her affirming decision, argued that Trenga’s decision served the public interest. The district court pointed to the wealth of talent and experience’ that the Intel Officers possess, wrote Berner. It noted that, [a]s the Supreme Court has repeatedly stated, there are few interests that can be more compelling than the nation’s need to ensure its own security.